In Douville v St-Germain, 2021 QCCS 3374, Justice Daniel Urbas denied a Defendant’s application for a confidentiality order in a defamation action, but reminded the parties that they could submit their dispute to arbitration, which would afford them the protection sought. Justice Urbas found that the applicant failed to establish a serious risk to an important public interest, but that a further application could be made in due time to seek the protection of specific exhibits or information.
Douville, who was active in the comedy and show business industry, filed an action for defamation on June 9, 2021 against three Defendants: St-Germain was alleged to have published defamatory comments regarding Douville, painting him as a sexual abuser and harasser; Côté was alleged to be the author of some of those comments and the victim of some of the acts attributed to Douville; and Danis was also alleged to be the author of some comments. Douville alleged that the defamatory comments interfered with his right to the safeguard of his honour.
Côté applied under article 12 of the Code of Civil Procedure, CQLR c C-25.01 (“C.C.P.”) for an order prohibiting the publication or disclosure of any information relative to the case that would allow Côté to be identified, as well as for anonymity to be preserved in any decision to be rendered, by the use of initials to identify Côté. Article 12 C.C.P. grants the Court discretion to make an exception to the principle of open court proceedings “if it considers that public order, in particular, the protection of the dignity of the persons concerned by a request, or the protection of important legitimate public order requires it.”
Douville opposed the application as tardy with respect to the anonymity order sought and as premature with respect to the confidentiality of information or documents not yet filed in the court record. Douville also invoked his own entitlement to remedy his harmed reputation by identifying clearly the authors of the defamation.
Applicable Test – At para. 54, Justice Urbas determined that the applicable test was articulated in the landmark Supreme Court cases of Dagenais v Canadian Broadcasting Corp.,  3 SCR 835 and R. v. Mentuck, 2001 SCC 76, recently reformulated in Sherman Estate v. Donovan, 2021 SCC 25. The test is, “in order to succeed, the person asking a court to exercise its discretion in a way that limits the open court presumption must establish that:
(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
At paras. 100 and 131, Justice Urbas underscored that each application ought to be considered on its facts and in accordance with the tests developed for the exercise of the court’s discretion, applied with flexibility and consideration for context. Courts oppose the automatic imposition of confidentiality measures, even in matters involving contested allegations of sexual aggressions.
Consideration of the Evidence – At para. 136, Justice Urbas recognized that the applicant bears the burden to justify an exception to the general principle of public of proceedings, and that a convincing evidentiary basis is required.
In this case, the evidentiary record was insufficient and incomplete. First, Justice Urbas found no evidence that the publicity of this specific case posed a serious risk to an important public interest. Second, he noted that the media had already made the case and its protagonists public and that Côté’s name already figured in the court’s docket, so that time had rendered useless an order imposing anonymity of the proceedings. Third, as no exhibits had yet been filed in the court record, it was premature to seek a wholesale prohibition on their disclosure or publication. Application could be later made regarding specific information or documents. Finally, Côté’s intention to file a cross-application regarding the damages suffered as a result of the alleged sexual aggression also weighed against the anonymity of proceedings, for such a crossclaim would require disclosure of the plaintiff’s identity according to A.B. v Robillard, 2021 QCCS 2550.
Advantages of Arbitration – In obiter (paras. 179 to 193), Justice Urbas reminded the parties that they had another option to protect their confidentiality while resolving their dispute; arbitration offers that advantage (as expressly provided for by article 4 C.C.P.), while publicity is the hallmark of judicial proceedings and secrecy is the exception (paras. 104 and 106).
Justice Urbas referred to two key decisions confirming the confidentiality of arbitration. First, the decision of Justice Marie-Anne Paquette in 79411 USA Inc. c. Mondofix Inc., 2020 QCCS 1104, stresses that protecting the confidentiality of arbitration is of public interest. Second, the decision of Justice Jean-François Michaud in SNC-Lavalin inc. c. ArcelorMittal Exploitation minière Canada, 2018 QCCS 3024, the court’s obligation to respect the confidentiality of arbitration was underscored, subject to few exceptions. Both Justices Paquette and Michaud insisted that a heavy burden awaits the party seeking to disclose the content of an arbitration in open court.
In closing, Justice Urbas noted that even though the Code of Civil Procedure imposes upon the parties a duty to “consider private prevention and resolution processes before referring their dispute to the courts” (article 1), it remained open to them to agree to resort to arbitration even once an action had been brought and in absence of arbitration agreement (pars. 179-180). As Justice Urbas put it, this may be to their advantage, for [informal translation] “[i]n both arbitration and proceedings before the Superior Court and the Court of Québec, parties control the course of their case. But in arbitration, they also automatically control their privacy.”
First, without referring explicitly to it, Justice Urbas directed the parties’ attention to the principle set out in the third paragraph of article 19 C.C.P., which states that the parties “may, at any stage of the proceeding, without necessarily stopping its progress, agree to settle their dispute through a private dispute prevention and resolution process or judicial conciliation; they may also otherwise terminate the proceeding at any time.”
Second, for a recent discussion of the public interest in promoting confidentiality in arbitration, see earlier Arbitration Matters Case Note Québec – judicial protection of parties’ confidentiality promotes public interest in arbitration – #305 regarding 79411 USA Inc. c. Mondofix Inc., 2020 QCCS 1104. In that case, Justice Paquette identified confidentiality of arbitration as being “often key to the success of a mediation or of a private arbitration, as it favours an open approach” (para. 7). Presumably, it is expected that parties who are less fearful of publicity will be more forthcoming and transparent with their positions and their evidence that they would be in judicial proceedings.
Third, Justice Paquette referred to the public interest in promoting arbitration. This interest garnered special attention from the Québec Legislature. The 2014 and 2016 reforms to the Code of Civil Procedure were expressly designed to encourage parties to resort to private dispute prevention and resolution processes, including mediation and arbitration. This paradigm shift is apparent from the decision to have the Code of Civil Procedure expressly govern the applicable procedure (when not determined by the parties), with the stated objective to “avoid litigation through appropriate, efficient and fair-minded processes that encourage the persons involved to play an active role” (Preliminary Provision, C.C.P.). This legislative choice is also reflected in other provisions, such as those stating that the rules of the Code of Civil Procedure are designed to facilitate the resolution of disputes (article 25 C.C.P.) and others, tasking tribunals with the mission to facilitate conciliation whenever circumstances permit (article 9 C.C.P.).