Case: Umeshappa v. PJ, 2025 NSCA 76 (CanLII)
Keywords: open courts principle; publication ban; Sherman Estate v. Donovan, 2021 SCC 25
Synopsis:
The Respondent begins an action against the Appellant alleging sexual assault and sexual harassment, and against Dalhousie University in negligence and breach of fiduciary duty. (See para. 2). She also moves for an order permitting identification by pseudonym and banning publication of “[her] name and her family members or any information that might disclose their identities”; Rowe J. grants the relief sought. (See para. 2).
The Appellant appeals, claiming the Chambers Judge erred by:
- refusing to adjourn the motion; and
- granting the publication ban. (See para. 3).
Leave is required because Rowe J.’s order is interlocutory as opposed to final. (See para. 4; Judicature Act, R.S.N.S. 1989, c. 240, s. 40). Although the Appellant “did not address the question of leave” (see para. 5), the Court of Appeal (Wood, C.J.N.S., Beaton and Gogan, JJ.A) grants leave and allows his appeal, finding: “[i]t is of utmost importance that limits on the transparency of our justice system only be imposed in accordance with the governing law and based on a sufficient evidentiary foundation.” (See para. 3).
Importance:
The Court of Appeal described its test for leave in the following terms:
In order to obtain leave, the appellant must raise an “arguable issue”. An arguable issue has been described as “one that actually arises on the facts and legitimately requires the Court’s attention”. It must be an issue that could result in the appeal being allowed. (See para. 4; Lavy v. Hong, 2018 NSCA 28 at para. 24; and Burton Canada Company v. Coady, 2013 NSCA 95 at para. 18).
In this case, the Court of Appeal found the Appellant “raised arguable issues requiring consideration”. (See para. 5). With respect to the Appellant’s adjournment request, the Court was “satisfied the failure to grant the adjournment resulted in an injustice in the conduct of the motion.” (See para. 10).
Regarding the publication ban, the Court of Appeal noted a discrepancy between Rowe J.’s oral decision (i.e., granting the Respondent’s request for an order permitting identification by pseudonym) and the order granting a publication ban. (See para. 19). For the Court, “discretionary limits to court openness must be in accordance with the law, the Charter, and the open courts principle”. (See para. 20, citing Sherman Estate v. Donovan, 2021 SCC 25 at paras. 1-3).
For the Court of Appeal, the open court principle is a “hallmark of a democratic society and applies to all judicial proceedings”. (See para. 1). The relevant test/analytical framework was summarized by the Court at para. 21:
Sherman Estate modified the Dagenais/Mentuck test. The new analysis requires an applicant to demonstrate an open court presents a serious risk to a competing public interest. It recognizes a public interest in the protection of sensitive information – related to the core identity of the individual – the dissemination of which could amount to an affront to the dignity of the person involved. In order to obtain an exceptional order limiting access, applicants must establish this dignity dimension of their privacy is at serious risk. Courts have recognized such a risk may exist in the dissemination of information involving sexual assault or harassment. Beyond this threshold requirement, both necessity and proportionality must be addressed. The Sherman Estate principles were recently considered by our court in Fraser v. Nova Scotia Barristers’ Society.
In this case, the Court of Appeal found that none of these required analytical steps were identified or addressed – “[r]egrettably, the chambers judge was not referred to the decision in Sherman Estate”. (See para. 22).
For the Court, the evidence provided by the Respondent (i.e., an affidavit from her lawyer) falls short of permitting the publication ban: “[i]n the present case, the evidence offered was an affidavit from counsel citing the plaintiff’s concern about the potential negative impact. Speculative evidence of this kind is insufficient.” (See para. 23).
The ‘speculative evidence’ in this case was an affidavit from the Respondent’s lawyer, indicating, among other things, that the Respondent had been subjected to “uninvited and unwanted physical contact” resulting in “humiliation, shame, a loss of self-esteem and a loss of identity”. (See para. 12). It would appear that Rowe J. exercised discretion to grant a publication ban, not just an order permitting identification by pseudonym – and did so in circumstances where “[n]o media appeared to oppose the motion” and “Dalhousie University took no position”. (See para. 6).
The Court of Appeal is sending a clear signal here: such an approach would be insufficient to meet the test because it relies on “logical inferences” which are not “grounded in objective circumstantial facts that reasonably allow the finding to be made inferentially”. (See para. 23; Sherman Estate at para. 97). By way of guidance to future litigants, the Court has adopted language from A.B. v. United Kingdom (Attorney General), 2019 NSSC 289 at para. 31, which cautions against “counsel arguing the case on the basis of their own affidavit”. (See para. 23).
Finally, the Court of Appeal indicated that neither party is precluded from applying again with a “sufficient evidentiary basis in accordance with the relevant legal principles”. (See para. 24).
Self-represented Appellant: Dr. Channakeshava Umeshappa
Counsel for the Respondent: Czerianne Nocon-Mantolino (MacGillivray Injury and Insurance Law, Halifax)
Counsel for the Respondent Dalhousie University (watching brief): Kristen Stallard for Heather M. Wyse (Patterson Law, Halifax)