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  • Case File Confidentiality / Privacy Rules

    I've been thinking about this lately, and was wondering if someone (preferably a practicing lawyer or paralegal) could shed some light on the subject.
    • What is the legality / rules (if any) in regards to making a court record publicly available?

    • What qualifies a case for publication to CANLII?

    • What is the extent of the information generally published to CANLII?

  • #2
    Originally posted by ninehundredt View Post
    I've been thinking about this lately, and was wondering if someone (preferably a practicing lawyer or paralegal) could shed some light on the subject.
    • What is the legality / rules (if any) in regards to making a court record publicly available?

    • What qualifies a case for publication to CANLII?

    • What is the extent of the information generally published to CANLII?
    I'm not a lawyer or paralegal but I know enough to sue one.

    we have an open court system. all court documents are available to public, unless they are sealed. Specific documents from a file or the entire file can be sealed. it's not easy to seal court documents. even when a file is sealed you may be able to access the orders made. not every document makes it to court file permanently (i.e. . settlement conference brief , affidavit for removing lawyer off record, etc. these documents are handed back immediately after their respective conferences/motions )

    judges decide what cases to publish on canlii and what not to publish. not every case makes it there. when a case is not on canlii it doesn't necessarily mean that the case is sealed.
    Last edited by trinton; 03-06-2017, 11:10 PM.

    Comment


    • #3
      What is the legality / rules (if any) in regards to making a court record publicly available?
      CAS files are not publicly accessible except to the parties, children of age and counsels of record.

      Otherwise, all family files (and criminal, and civil) are publicly available unless sealed. If you requisition the file you can review it and copy from it, although court staff may be suspicious if a layman wants to copy someone else's financial information without giving a reason.

      What qualifies a case for publication to CANLII?
      CanLII decides. Generally, if a judge reserves then gives a written endorsement setting out their decision with reasons there is a higher chance it makes it to CanLII. This appears to vary between jurisdictions. By written, I refer to a typed decision rather than scrawls across an endorsement page.

      What is the extent of the information generally published to CANLII?
      CanLII publishes the decision verbatim.

      Comment


      • #4
        Originally posted by OrleansLawyer View Post
        CAS files are not publicly accessible except to the parties, children of age and counsels of record.

        Otherwise, all family files (and criminal, and civil) are publicly available unless sealed. If you requisition the file you can review it and copy from it, although court staff may be suspicious if a layman wants to copy someone else's financial information without giving a reason.



        CanLII decides. Generally, if a judge reserves then gives a written endorsement setting out their decision with reasons there is a higher chance it makes it to CanLII. This appears to vary between jurisdictions. By written, I refer to a typed decision rather than scrawls across an endorsement page.



        CanLII publishes the decision verbatim.
        Interesting. So either party could publish case files (orders, OCL reports, correspondence...etc) on a website for all to see without consequence?

        Sent from my Nexus 5 using Tapatalk

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        • #5
          My divorce was handled by way of a binding JDR (binding arbitration) with a judge...it is private and fortunately will never hit the pages of CanLII. In fact, over the years after our divorce when my ex took me back to court many times, each and every judge commented that the JDR was private and refused to entertain any discussion, whatsoever, on it.

          I agree with OrleansLawyer's post.

          A very small percentage of cases are published in CanLii.

          Comment


          • #6
            If you don't want your stuff in the public record don't go to court, settle the matter and come to an agreement or go to private arbitration.

            Comment


            • #7
              So either party could publish case files (orders, OCL reports, correspondence...etc) on a website for all to see without consequence?
              No. There is an implied undertaking not to share or reproduce this information outside of the litigation.

              Ontario: https://www.canlii.org/en/on/onca/do...anlii1888.html
              BC: http://www.canlii.org/en/bc/bcca/doc...anlii1800.html

              A related article:
              http://www.fasken.com/files/Event/75...dentiality.pdf

              Comment


              • #8
                Originally posted by OrleansLawyer View Post
                No. There is an implied undertaking not to share or reproduce this information outside of the litigation.

                Ontario: https://www.canlii.org/en/on/onca/do...anlii1888.html
                BC: http://www.canlii.org/en/bc/bcca/doc...anlii1800.html

                A related article:
                http://www.fasken.com/files/Event/75...dentiality.pdf
                And I add... To publish the stuff would make you look like an idiot and a judge would rain down hell on you for doing it.

                Comment


                • #9
                  Originally posted by OrleansLawyer View Post
                  No. There is an implied undertaking not to share or reproduce this information outside of the litigation.

                  Ontario: https://www.canlii.org/en/on/onca/do...anlii1888.html
                  BC: http://www.canlii.org/en/bc/bcca/doc...anlii1800.html

                  A related article:
                  http://www.fasken.com/files/Event/75...dentiality.pdf
                  This is what I was looking for.

                  Originally posted by Tayken View Post
                  And I add... To publish the stuff would make you look like an idiot and a judge would rain down hell on you for doing it.
                  How did you reach that conclusion?

                  I just remembered there was a recent case of something similar happening where the father posted court documents which painted a negative image of the mother and caused her to receive death threats. Maybe someone will chime in with the exact case.
                  Last edited by ninehundredt; 03-10-2017, 05:49 PM.

                  Comment


                  • #10
                    Just search any case involved with "Canada Court Watch" and see how the judges dealt with the nonsense. There are hundreds of examples of judges ordering the removal of websites.

                    I can't think of a single case example where a parent went out and posted court documents and was successful in gaining majority access and sole custody. LOL.

                    Making a divorce and custody and access dispute very public on the internet is never a good idea. It smells of "revenge-porn-like" conduct.

                    Comment


                    • #11
                      Recent case law that may be of interest:

                      J.K. v. W.R.N, 2016 ONSC 3179 (CanLII)
                      Date: 2016-05-13
                      Docket: FS-14-394522
                      Citation: J.K. v. W.R.N, 2016 ONSC 3179 (CanLII)
                      http://canlii.ca/t/grpzs

                      PUBLIC INFORMATION

                      The Respondent shall not now or in the future show M.N. anything in any medium whatsoever related to the parties’ separation including but not limited to: (a) emails; (b) letters; (c) texts; (d) documents; (e) court documents; (f) court orders. The Respondent shall not now or in the future create and/or post and/or disseminate and/or publish and/or release any information or documentation or story or book in any medium whatsoever related to the parties’ separation.

                      Comment


                      • #12
                        Originally posted by Tayken View Post
                        Recent case law that may be of interest:

                        J.K. v. W.R.N, 2016 ONSC 3179 (CanLII)
                        Date: 2016-05-13
                        Docket: FS-14-394522
                        Citation: J.K. v. W.R.N, 2016 ONSC 3179 (CanLII)
                        http://canlii.ca/t/grpzs
                        I understand your sentiment, but I also believe that transparency is important. I've started getting into listening to podcasts lately, and noticed there are a lot of them which cover court cases. This prompted my curiosity on the legality of this practice.

                        To my knowledge, all of the podcasts I've listened to thus far have been regarding cases that took place in the United States. Perhaps the laws are different there. I should also note that the individuals or groups presenting the information are a third party (not the plaintiff or defendant), and only certain ones are involved peripherally with any ongoing litigation.

                        As a counterpoint, there have been benefits to publication of case information. In many cases it's resulted in revealed incompetence and complacency within the court system and/or by investigators. This in turn has allowed many wrongful prosecutions / decisions to be reopened and reviewed. I imagine there is a distinct difference in handling of family court matters versus criminal and general civil cases, so maybe that is the key.

                        Comment

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