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The Open Court Process for Personal Injury Cases

 
Document Disclosure in Civil Claim
It is not surprising that in a free and democratic society we should have a public right to an open court process. Having truly a open court ensures that common values are being applied within all our British Columbia judicial proceedings. Openness is essential to accessibility and accountability in the judicial system. However, personal injury claimants can be surprised to learn that when their case is filed with the court or goes to trial personal documents and information can become part of the public record.
Documents such court orders, reasons for judgment, affidavits, pleadings and transcripts of court proceedings are not private or confidential and the implied undertaking of confidentiality rule does not apply to such documents.

 [40]  …While a litigant’s right of privacy is an important right, it is subject to, and does not take precedence over, the right of the public to an open court process: Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326. ( Chellappa v. Kumar, 2016 BCCA 2)

Although the principle of openness is a core value of our judicial system, the competing interest of the right to privacy has been accorded constitutional protection in s. 7 of the Charter. Section 7 of the Charter provides that:

 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In the car accident personal injury case of X. v. Y.,2011 BCSC 943 the Judge agreed to seal the file and changes the names of the parties and witnesses to initials. In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 the Court affirmed that although the matter under consideration was a civil proceeding and Charter rights were not directly engaged, those rights should inform the exercise of discretion in determining any exceptions to the principle of openness: paras. 37-38.

 X. v. Y. was a case in which the injury claimant was an RCMP officer involved in gang investigation and feared for the safety of his friends and family.  The claimant sought these anonymity measures not because of embarrassment or paranoia, but for safety reasons. Exception to the principle of openness ought to be invoked when there are real and legitimate security concerns. It is appropriate to limit public access to certain aspects of a personal injury case to protect the proper administration of justice.

The British Columbia Court of Appeal observed in B.G. et al v. H.M.T.Q. in Right of B.C., 2004 BCCA 345 at para. 26, that replacing names with initials in a judgment minimally impairs the openness of judicial proceedings because it relates only to a “sliver” of information ( see para 27 of  X. v. Y.).

 Read on to learn more about the privacy rights of personal injury claimants.

Tags: Open Court Process, Privacy as Anonymity, privacy rights, Seal the File

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