The Episcopal Corp. of the Diocese of Alexandria-Cornwall (the “Episcopal Corp.”) was unsuccessful in its appeal from a Supreme Court decision that denied its application for a judicial review of the decision of the Commissioner of the Cornwall Public Inquiry banning the publication of the name of one of its employees in relation to evidence given at the Inquiry

Administrative law – Decisions of administrative tribunals – Public Inquiry – Publication ban – Judicial review – Standard of review – Reasonableness simpliciter

Episcopal Corp. of the Diocese of Alexandria-Cornwall v. Cornwall (Public Inquiry), [2007] O.J. No. 100, Ontario Court of Appeal, January 16, 2007, J.C. MacPherson, R.J. Sharpe and R.A. Blair JJ.A.

Episcopal Corp. sought an order to ban the publication of the name of one of its employees in relation to evidence given at the Inquiry, which was established to investigate the institutional response of the justice system and other public institutions into allegations of widespread historical sexual abuse of young people in Cornwall. The employee was acquitted of historical sexual abuse charges in 2001. When it became apparent that the complainant would be asked to give evidence before the Inquiry of his allegations against the employee, the Episcopal Corp. requested the publication ban. It contended that, as the employee’s innocence had been established in the criminal proceedings, his reputation and privacy interests outweighed any deleterious effects the ban would have on the parties and the public. The Commissioner refused to order the requested ban. He found that the allegations against the employee had already received wide publicity, that it could not be presumed that the public would ignore reminders of the acquittal and that in view of the nature of the Inquiry’s mandate to clear the air, the public interest in openness outweighed any interest of the employee who would be protected by the requested ban. An application for judicial review of that decision was dismissed by a Judge of the Divisional Court who applied a reasonableness standard of review and found that the decision was not unreasonable. The Episcopal Corp. appealed that decision contending that the Divisional Court Judge applied the wrong standard of review and erred when he failed to find that the Commissioner had given insufficient weight to the employee’s privacy and reputation interests.

The Court of Appeal held that the application Judge did not err in finding that the appropriate standard of review was reasonableness simpliciter. The Court determined the appropriate standard of review based on a “pragmatic and functional” balancing of the four factors outlined by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizen and Immigration), [1998] 1 S.C.R. 982:

1. The presence or absence of a right of appeal or privative clause;
2. The expertise of the Tribunal;
3. The purpose of the legislation as a whole and of the particular provision; and
4. The nature of the question before the Tribunal.

 The Court noted that the Supreme Court of Canada had indicated that a lower standard of review than correctness was warranted where “legal principles are vague, open-textured, or involve a ‘multi-factored balancing test’”, requiring “the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties”. In this case, the concerns addressed by the Commissioner involved a “polycentric issue” involving a large number of interlocking and interacting interests and considerations. In the Court’s view, this factor pointed to a deferential standard of review and the Court concluded that the application Judge had not erred in concluding that a reasonableness standard should be applied.

On the issue of whether the application Judge erred in failing to find that the Commissioner gave insufficient weight to the employee’s privacy and reputation interests, the Court noted that regard must be had to the particular context in which the request for a publication ban arose. The Court distinguished the decision of the Newfoundland Supreme Court in Re Canadian Broadcasting Corp. (2005), 205 C.C.C. (3d) 435 where the media had been unsuccessful in setting aside a publication ban. In that case, all proceedings had come to an end and the publication bans had no impact upon the openness or successful operation of an ongoing proceeding. In the case at bar, the Court noted that they were dealing with a public inquiry called to clear the air of allegations of conspiracy and cover-up and to “encourage community healing and reconciliation”. Openness was a relevant factor to the Commission’s success in accomplishing that mandate. As the allegations against the employee had already been publicised in the community, the Commissioner concluded that with appropriate emphasis upon the acquittal and by expunging reference to the details of the allegations, the impact of disclosure of the employee’s name could be minimized. In these circumstances, the Commissioner’s conclusion that the Episcopal Corp. had not satisfied the burden of demonstrating that there was either a serious risk to the administration of justice or that the salutary effects of a publication ban outweighed the deleterious effects on the public interest in openness was reasonable.

In the result, the appeal was dismissed with costs to the Commissioner.

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