Are Pleadings And Exhibits Accessible To The Public In Perpetuity?

As a general rule, pleadings and exhibits filed into court are public in nature and can be accessed by anyone, including journalists. In exceptional cases however, it is possible to remove them from public scrutiny, either by having them sealed or withdrawing them from the court record once the file has been closed.

The Quebec Superior Court recently reconsidered its status as a court of record in its decision CIUSS de l'Ouest-de-l'Île-de-Montréal v. M.K.1

* * *

I- Facts

A health care institution, the Centre intégré universitaire de santé et de services sociaux de l'Ouest-de-l'Île-de-Montréal (the "CIUSSS") applied for the removal from the court record of its exhibits, which had been sealed during the proceedings, after having discontinued its action against a former employee of a hospital affiliated with the CIUSSS. Relying on the second paragraph of article 108 of the Code of Civil Procedure2, it insisted on the need to protect the confidentiality of some of the information in the pleadings and on the obligation to remove the exhibits from the file once the proceedings had come to an end.

The defendant M.K. concurrently applied for the removal of the originating application from the file, basing himself on the right to withdraw a pleading pursuant to article 208 CCP3. In his view the pleadings and exhibits contained potentially defamatory allegations in his regard and he argued that they should not be accessible to the public.

Both of these applications were contested by news organization Quebecor Media, which argued that the court-ordered seal should be lifted. It pleaded the general principle of the public nature of court documents as well as the public interest in the documents filed into evidence, which pertained to the management of the resources of a public body.

* * *

II- Decision

The Court concluded that the exhibits and the interlocutory pleadings could be withdrawn from the court record, but that the originating application must remain on file and be made public.

According to the Court, an exception to the "open court" principle4 lies where the protection of a person's dignity or important legitimate interests justify it5. In such cases a confidentiality order may be issued, provided that the criteria laid down by the Supreme Court of Canada6 are met: i.e. the order must be necessary to prevent a serious risk to the proper administration of justice, and its salutary effects must outweigh its deleterious effects7.

Once the...