MediaQMI inc. v. Kamel, 2021 SCC 23 (38755)
“On October 6, 2016, the Centre intégré universitaire de santé et de services sociaux de l’Ouest‑de‑l’Île‑de‑Montréal (“CIUSSS”) brought a legal action against a former manager, alleging misappropriation of public funds. The action was accompanied by an application for a Norwich order to obtain the identity of the holder of the four bank accounts to which the money had allegedly been diverted. On October 7, 2016, the Superior Court made the Norwich order and ordered that the entire record be sealed, including the four exhibits filed by the CIUSSS in support of its allegations. On March 29, 2017, MediaQMI, a newspaper publishing company, filed a motion to unseal based on art. 11 of the Code of Civil Procedure (“C.C.P.”) and s. 23 of the Charter of human rights and freedoms (“Quebec Charter”) in order to have access to the court record, including the exhibits that might be in it. The hearing of the motion, scheduled for April 5, 2017, was postponed to April 25, 2017. In the meantime, on April 19, 2017, the CIUSSS discontinued its legal action. It tried to retrieve the exhibits it had filed, but the staff of the court office could not find them. When the motion was heard on April 25, the CIUSSS made an oral request to retrieve the exhibits filed in the court record. MediaQMI opposed that request.
The Superior Court ordered that the court record be unsealed based on the test set out in Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76,  3 S.C.R. 442, finding that the evidence was insufficient to depart from the principle of open court proceedings. However, it granted the request to retrieve the exhibits made by the CIUSSS, in accordance with art. 108 C.C.P., because of the discontinuance that had terminated the proceeding. The day after the judgment was rendered, the CIUSSS retrieved its exhibits. The Court of Appeal dismissed MediaQMI’s appeal from the conclusion relating to the retrieval of exhibits.”
The SCC (5:4, two judges writing joint reasons in dissent, with whom two other judges concurred) dismissed the appeal.
Justice Côté wrote as follows (at paras. 1-2, 56, 68, 70-71):
“The importance of the principle of open court proceedings is no longer a matter of controversy today. It will readily be agreed that, as one early author elegantly stated, justice is [translation] “a work of light and not of darkness”: J. Frain du Tremblay, Essais sur l’idée du parfait magistrat où l’on fait voir une partie des obligations des Juges (1701), at pp. 139‑40. This is not in question here. But however important a principle may be, it is not without limits. This appeal calls upon us to clarify the limits of the openness of court proceedings. What must be determined, in essence, is how far the aspiration for transparency in the judicial process should lead and at what point secrecy can prevail.
In Québec, the Code of Civil Procedure, CQLR, c. C‑25.01 (“C.C.P.”), gives members of the public the right to have access to court records: art. 11 C.C.P.No prior authorization is required: anyone can examine the content of such records. The Code also contains a provision dealing with the retrieval of exhibits filed in a court record: art. 108 C.C.P. In the course of a proceeding, the parties are authorized to retrieve their exhibits if all of them consent; once the proceeding has ended, they are obliged to do so, otherwise the exhibits may be destroyed by the court clerk after one year. The question at the centre of this appeal is whether art. 11 C.C.P. allows members of the public to consult exhibits that have been retrieved by the parties in accordance with art. 108 C.C.P. In my view, the right to have access to court records set out in art. 11 C.C.P. does not extend beyond what is in these records at the time they are consulted. This means that once the parties retrieve their exhibits at the end of a proceeding, members of the public will still be able to consult the record but will no longer have access to the exhibits that have been removed from it.
To summarize, art. 11 C.C.P. gives the public the right to have access to court records, subject to exceptions for confidential information. This right applies during and after a proceeding. It allows the public to consult the exhibits filed in the record, but only if they are in the record at the time it is consulted. The content to which it gives access is governed in part by art. 108 C.C.P. That provision authorizes the parties to retrieve their exhibits by consent in the course of a proceeding, and requires them to retrieve their exhibits once the proceeding has ended. Even after the proceeding has ended, the exhibits can be consulted as long as they remain in the record. But once the parties retrieve them or the court clerk destroys them, they cease to be part of the record to which the public can have access.
With respect, it seems to me that my colleagues’ position takes some concerning liberties with the statutory language. It takes a roundabout path to avoid the legal consequence attached by the Code of Civil Procedure to a notice of discontinuance filed with the court office and notified to the parties. This legal consequence, which is not conditional on the absence of pending applications, is the termination of the proceeding: art. 213 C.C.P. Yet the termination of the proceeding entitles — indeed requires — the parties to retrieve their exhibits: art. 108 C.C.P. The legal consequence from which the power to retrieve the exhibits in the record arises can therefore be avoided only by contesting the discontinuance itself.
In short, the discontinuance of a proceeding is not a unilateral act of renunciation like any other. Because it is a way of forgoing a trial, it nullifies the parties’ procedural legal relationship arising from the judicial application. This explains why a defendant or intervener can contest a discontinuance that is prejudicial to it. The situation is different for a third person whose rights and interests are not affected by the parties’ arguments on the merits. Prima facie, the extinguishment of the procedural legal relationship has no effect on that person. If prejudiced by it for any reason, the third person may apply to set aside the discontinuance. In this case, if MediaQMI wanted to prevent the exercise of the power given by art. 108 C.C.P. to the parties to a terminated proceeding, it had to contest the discontinuance extinguishing the proceeding. It did not do so. There was therefore nothing that prohibited the CIUSSS from retrieving its exhibits.
I also note that my colleagues do not explain how remanding the case to the Superior Court “so that it can decide the application for access to the exhibits in accordance with the applicable law” (that is, in their view, in accordance with the Dagenais/Mentuck test) would help MediaQMI access exhibits that were retrieved from the record the day after the Superior Court’s judgment was rendered: para. 143. In light of the Code of Civil Procedure, and given that MediaQMI’s motion was based on a provision giving it the right to have access to a court record, I fail to see how the motion would enable it to consult exhibits that had in fact already been retrieved from the record in accordance with art. 108 C.C.P. Although counsel for the CIUSSS agreed as a courtesy to keep a copy of the exhibits until the case was over, he did so “[w]ithout prejudice” and “without any admission” (A.R., at pp. 82 and 85): this did not create any legal fiction that would make it possible to proceed as if the exhibits had never been retrieved. Finally, I note that my colleagues’ position departs from what MediaQMI has asked this Court to do, which is to declare that the exhibits that were once in the record are public and to order the CIUSSS to provide it with a copy of them. I agree with Schrager J.A. that MediaQMI is confusing the access to information mechanisms and the principle of open proceedings: C.A. reasons, at para. 44.”