Decision No. 289-C-A-2010

July 7, 2010

File No. M4120-3/10-01812

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INTRODUCTION

[1] In Decision No. 57‑C‑A-2010 dated February 18, 2010, the Canadian Transportation Agency (Agency) dismissed Dr. Frank Fowlie's complaint with respect to Air Canada's refusal to transport him on Flight AC195 from Montréal, Quebec to Vancouver, British Columbia on March 22, 2009. The Agency found that Dr. Fowlie engaged in abusive and offensive behaviour during Flight AC871 and that he failed to discharge the burden of proving that Air Canada did not properly apply the terms and conditions set out in Rule 25 of its Tariff.

[2] On March 1, 2010, Dr. Fowlie filed an application under section 32 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) for review of Decision No. 57‑C‑A‑2010. On March 9, 2010, the Agency received a request from Dr. Fowlie for non‑publication of his name in Decision No. 57-C-A-2010, which had been issued and posted on the Agency's Web site on February 18, 2010. He essentially alleges that the decision has created an adverse and likely unintended impact by making him the target of media scrutiny.

BACKGROUND

[3] On April 16, 2010, Dr. Fowlie was requested to complete his application for non-publication by providing evidence and arguments on the open court principle. He was also advised of the evidentiary burden of proof and the test he had to meet for the Agency to depart from the open court principle and make an exception.

[4] On May 7, 2010, the Agency received further submissions from Dr. Fowlie which completed the application.

[5] On May 19, 2010, the completed application for non-publication was forwarded to Air Canada as a party to this proceeding and Air Canada was provided an opportunity to comment, which it did on June 4, 2010. Dr. Fowlie did not reply to Air Canada's answer.

ISSUE

[6] Has Dr. Fowlie met the burden of proof that a non-publication order is necessary to prevent a serious risk to an important public interest, and that the salutary effects of non-publication outweigh the deleterious effects on the freedom of expression of those affected by the order?

SUBMISSIONS

Dr. Fowlie

[7] Dr. Fowlie claims that by treating him in a manner different than previous applicants to the Agency (namely, Decision No. 383-C-A-2008 in the matter of a complaint filed by "K" against Air Canada), the Agency has been unfair and has damaged his professional reputation. Dr. Fowlie requests that the Agency publish the decision in the same generic manner as in the "K" matter.

[8] Dr. Fowlie claims that the publication of the decision has had an adverse impact on his livelihood and that since the publication of the decision and the reporting of it in online journals relating to his profession, he has become a target of media scrutiny.

Evidence of harm

[9] Dr. Fowlie claims that a non-publication order is necessary to prevent a serious risk to an important interest which in this case is Dr. Fowlie's employment as an ombudsman that carries an emphasis on public perception of impartiality and neutrality. Dr. Fowlie claims that the ruling in Decision No. 57-C-A-2010 has a direct and highly detrimental impact on that perception that goes beyond the scope of mere embarrassment and undermines public confidence in the Office of the Ombudsman. He alleges that this impact directly interferes with his ability to perform his job.

[10] Dr. Fowlie states that the scope and nature of his employment is uniquely sensitive to matters such as the present case, and the threat to that employment posed by publication is real. According to Dr. Fowlie, this goes beyond mere embarrassment. Dr. Fowlie expressed concerns about his ability to retain his current employment or obtain similar employment in the future, but presented no supporting evidence to that effect. Dr. Fowlie further states that he could not have reasonably foreseen that his initial complaint filed with the Agency could have been denied and gone so far as to ultimately impair his ability to maintain employment as an ombudsman.

[11] Dr. Fowlie submits that there would be little or no deleterious effect to the public at large in imposing a confidentiality order in this case, and that when the prejudice to his livelihood resulting from publication is weighed against the minimal prejudice to the public that would result from non-publication, the balance strongly militates in favour of the non-publication order.

Timing of request

[12] In his reply to the Agency's request to explain why non-publication was not sought in the course of the complaint procedure, Dr. Fowlie submits that at the time that the complaint process was in progress, he had no reasonable apprehension of the negative impact of the Agency's findings on his ability to maintain or obtain employment as an ombudsman or similar public official position.

Mootness of request

[13] Dr. Fowlie affirms that the Internet contains both primary and secondary sources of information. Dr. Fowlie submits that the Agency's published decisions are the primary source and are maintained in perpetuity; and third-party commentators constitute secondary sources. Dr. Fowlie also submits that the present secondary sources would disappear over time and newer secondary sources would pick up the new, anonymously attributed decision. According to Dr. Fowlie, there is much to be gained by imposing the request order now.

Air Canada

[14] Air Canada submits that there is a strong public interest in open and accessible proceedings that should be curtailed only where there is a need to protect social values of superordinate importance. The open court principle must prevail except in limited circumstances. The Supreme Court of Canada has articulated a test to determine when the open court principle should be set aside (see Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442, and Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522).

[15] Air Canada further submits that Dr. Fowlie has not met the burden of proof required when making an application for non-publication of his name and has not proven, through fact-based evidence, that the test was met.

Necessity stage: Dr. Fowlie's alleged risk is speculative

[16] Air Canada relies on the Sierra Club decision where the Supreme Court of Canada ruled that the "real and substantial" criterion of the test must be well grounded in evidence. Air Canada also refers to Fairview Donut Inc. v. The TDL Group Corp. and Tim Hortons Inc., [2010] O.J. No. 502 (QL); and Pfizer Canada Inc. v. Novopharm Ltd., [2010] F.C.J. No. 478 (QL), in respect of the "real and substantial risk" criterion. Air Canada asserts that in order to meet the test, the risk must be real and substantial and the principle of an open judicial process must not be compromised in the case where the alleged risk is speculative. Dr. Fowlie's allegation that he will lose his employment is speculative and not proven by evidence.

[17] In addition, Air Canada maintains that Dr. Fowlie has essentially contributed to creating the aforementioned public perception by giving an interview to the Ottawa Citizen newspaper resulting in the publication of an article, following the publication of the Decision. Air Canada asserts that Dr. Fowlie has publicly criticized Air Canada, as well as the administrative process before the Agency, and has himself brought the matter in the public forum.

Necessity stage: Dr. Fowlie's interest cannot be characterized as a general public interest

[18] Air Canada submits that embarrassment and threats to Dr. Fowlie's employment and livelihood constitute personal interests that are specific to Dr. Fowlie. Air Canada relies on the Sierra Club decision where the Supreme Court recognized that the interest at issue must be one which can be expressed in terms of public interest in confidentiality.

[19] Air Canada also cites the Fairview Donut decision where the Ontario Court of Justice concluded that the interest in question must go beyond harm to the private commercial interests of a person or business and must be one that can be expressed in terms of a public interest in confidentiality. Air Canada argues that Dr. Fowlie's interest in issue is purely a personal interest which is not sufficient to obtain the non-publication sought.

Dr. Fowlie's failure to meet the proportionality stage

[20] In the event that the Agency finds that there is a real and substantial risk to publish Dr. Fowlie's name, Air Canada submits that there are no salutary effects to granting the application, except for Dr. Fowlie's personal benefit. In addition, Air Canada submits that there is no evidence that the non‑publication will have the effect of removing the alleged threat to Dr. Fowlie's employment.

[21] Finally, Air Canada argues that judicial and quasi-judicial proceedings introduced by Dr. Fowlie should be made available to the public, given his own admission that the public perception as to his impartiality is important for his employment.

ANALYSIS AND DETERMINATION

Legal test for non-publication

Open court principle

[22] The Agency is a quasi-judicial tribunal and fulfills its adjudicative function in accordance with the fundamental principles of the Canadian legal system, among which is the "open court principle." This principle presupposes that, apart from exceptional cases, proceedings before courts and administrative tribunals are public.

[23] It is recognized, however, that the constitutionally protected open court principle may come into conflict with privacy interests, which also have been granted constitutional protection. In determining whether there are privacy interests to be protected, the Agency must conduct a balancing exercise within the general framework of the test formulated by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and in R. v. Mentuck, [2001] 3 S.C.R. 442, which is referred to as the Dagenais/Mentuck analysis.

[24] The Dagenais/Mentuck analysis, developed in the context of a criminal matter, was later adapted for the issuance of confidentiality orders in a civil matter in Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522. At pages 543 and 544 of its decision, the Supreme Court of Canada determined that a party seeking a departure from the open court principle bears the burden of establishing, on a balance of probabilities, that:

[…]

such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

[25] The Supreme Court then indicated that three important elements are subsumed under the first branch of the test. First, the risk must be real and substantial. Second, the important commercial interest must be one which can be expressed in terms of a public interest in confidentiality, where there is a general principle at stake. Finally, the decision-maker is required to consider not only whether reasonable alternatives are available to such an order but also to restrict the order as much as is reasonably possible while preserving the commercial interest in question.

[26] The Agency has dealt with a similar issue in Decision No. 219-A-2009, in the matter of a motion by Leslie Tenenbaum for Non-Publication of His Name. In the Tenenbaum decision, the Agency applied the test outlined above. The Agency will apply this test in the present matter.

Analysis

[27] Dr. Fowlie alleges that the Decision interferes with his ability to perform his job but provides no evidentiary basis beyond his statement. The Agency received no evidence as to the serious risk to which Dr. Fowlie may be subject and therefore is not satisfied that the non-publication will remove the potential harm. Dr. Fowlie's allegation that he will lose his employment is merely speculative and not proven by evidence.

[28] Dr. Fowlie states that the scope and nature of his employment is uniquely sensitive to matters such as the present case. As stated at paragraph 32 of the Tenenbaum decision, "[u]nder the "open court principle", parties cannot expect, as a right, that the details of their dispute remain private." Embarrassment does not constitute an exception according to the Supreme Court of Canada decision in A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175, at page 185:

[…] Many times it has been urged that the "privacy" of litigants requires that the public be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings. [...]

(Emphasis added)

[29] The Agency finds that the scope and nature of Dr. Fowlie's employment is not uniquely sensitive. Even if the Agency found that Dr. Fowlie's employment was uniquely sensitive, Dr. Fowlie presented evidence that he voluntarily chose to engage in a public debate and discussion of the Agency's decision, namely in an interview with the Ottawa Citizen, that led to the publication of an article in that newspaper. Dr. Fowlie has contributed to his own exposure to media scrutiny.

[30] Dr. Fowlie raised an issue concerning the Agency being a primary source of information and that the decisions would be maintained in perpetuity on the Web site. In the letter sent on September 22, 2009, Dr. Fowlie was advised that in an effort to establish a fair balance between public access to decisions and the individual's right to privacy, the Agency has taken measures to block Internet searching of full-text versions of decisions posted on its Web site. This is done by applying instructions using the "web robot exclusion protocol" which is recognized by Internet search engines (e.g. Google and Yahoo). Therefore, the only decision-related information on the Agency's Web site available to Internet search engines are decision summaries and comments contained in the Agency's annual reports and releases. The full-text version of decisions is posted on the Agency's Web site, but is not accessible by Internet search engines. As a result, an Internet search of a person's name set out in a decision will not provide any information from the full‑text version of decisions posted on the Agency's Web site. Accordingly, there is no real and substantial risk that the publication of the Agency's Decision on its Web site will interfere with Dr. Fowlie's ability to perform his job.

[31] The Agency must also determine whether Dr. Fowlie has shown an important interest which can be expressed in terms of a public interest. In this case, Dr. Fowlie's important interest would be his employment as an ombudsman that carries an emphasis on public perception of impartiality and neutrality.

[32] In Sierra Club, paragraph 55, the Supreme Court of Canada made it clear that "[i]n order to qualify as an "important commercial interest" the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in confidentiality." Furthermore, at paragraph 48 in Fairview Donut Inc., the Ontario Superior Court of Justice observed that "[…] litigation frequently involves disclosure of sensitive, embarrassing and sometimes prejudicial information, but the principle of open justice admits of limited exceptions […]." This is a necessary consequence of maintaining an open and public judicial system. The Agency finds that the interest under consideration is one that relates to Dr. Fowlie's personal interest only and does not constitute a legitimate public (including commercial) interest in need of protection.

[33] As Dr. Fowlie has not provided evidence that there is a real and substantive risk, nor did he provide evidence that there is an important interest which can be expressed in terms of a public interest in the order sought, the Agency does not have to determine whether there is a need to preserve the interest in question.

[34] Finally, Dr. Fowlie claims that he has been treated differently than previous applicants to the Agency (namely, Decision No. 383-C-A-2008 in the matter of a complaint filed by "K" against Air Canada).

[35] The circumstances surrounding the "K" decision and this decision are very different. When the "K" decision was issued, the Agency had no policy on the non-publication of names in decisions. Applicants were not advised that their names would appear in a decision and on the Web site. Furthermore, the "web robot exclusion protocol" was not applied at the time of the "K" decision.

[36] The information regarding the Agency's privacy policy can now be found on its Web site. Each applicant is also made aware at the outset that the Agency applies the open court principle and that its proceedings are public.

[37] In this case, in response to his complaint filed with the Agency, a letter opening pleadings was issued on September 22, 2009 to Dr. Fowlie and Air Canada. In an attachment to that letter, entitled "Important privacy information", the open court principle was clearly defined. In fact, Dr. Fowlie was advised at that time that a decision in his case would be published, that a copy would be posted on the Agency's Web site and that his name would appear in the decision. He was also clearly advised, at that time, how to proceed if he did not want his name to appear in the decision:

There may be exceptional cases to warrant the omission of certain identifying information from the Agency decision. Such omission may be considered where minor children or innocent third parties will be harmed, where the ends of justice will be undermined by disclosure or the information will be used for an improper purpose. In such situations, the Agency may consider requests, supported by proper evidence, to prevent the use of information which identifies the parties or witnesses involved. Any individual who has concerns with respect to the publication of his/her name should contact the Agency's Secretariat by e-mail at NDN-NPN@otc-cta.gc.ca or by calling at (819) 997-0099.

[38] Dr. Fowlie states that the reason why he did not seek a non-publication order during his initial complaint is because he could not reasonably have anticipated that his complaint could be dismissed and the effect the Agency's decision would have on his interests. The Agency finds this argument implausible as a reasonable person in Dr. Fowlie's position should have anticipated the possibility that his application could be denied. The Agency clearly indicated that, in any event, the decision would be published outlining the details of such application, including the name of Dr. Fowlie and the circumstances leading to the application.

[39] Considering that the Agency has put in place measures to balance the open court principle and the privacy interests of applicants and considering that the Agency considers these matters on a case by case basis, the Agency rejects this argument.

Section 32 application

[40] Following the Agency's examination of the application, a decision, containing Dr. Fowlie's name, will be issued and posted on the Agency's Web site. Dr. Fowlie is requested to advise within five days from the date of this Decision whether he wishes to pursue his section 32 application. The Agency will apply the open court principle when it publishes its decision on Dr. Fowlie's section 32 application.

CONCLUSION

The Agency finds that Dr. Fowlie did not meet the evidentiary threshold and did not establish, on a balance of probabilities, the need for a non-publication order. Therefore, the Agency dismisses Dr. Fowlie's application.

Members

• Raymon J. Kaduck
• J. Mark MacKeigan