Court of Appeal stays ‘unsealing’ order pending leave to appeal to the Supreme Court

In Donovan v. Sherman Estate, 2019 ONCA 376, the Court of Appeal for Ontario set aside a sealing order, to take effect 10 days after the release of its reasons. Absent a stay under section 65.1 of the Supreme Court Act, the sealed materials would have entered the public domain long before the expiry of the 60 days to apply for leave to appeal to the Supreme Court of Canada. Would that have risked a “miscarriage of justice” to justify granting a temporary stay before the unsuccessful party had even applied for leave to appeal? In subsequent reasons (2019 ONCA 465), the Court of Appeal answered that question in the affirmative and stayed its own “unsealing” order.

Background

A motion judge sealed certain court files related to the administration of the estates of Bernard and Honey Sherman—first ex parte, and then following a largely unsuccessful motion by a journalist and his newspaper to terminate or vary the ex parte sealing order. The journalist appealed from the latter order to the Court of Appeal, which allowed the appeal and set aside the sealing order. That appellate order (which effectively unseals the sealed materials) was to take effect in 10 days.

Stays pending leave to appeal

Stays pending proceedings in the Supreme Court of Canada are addressed in Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition, Chapter 2, Part E(3). At the leave stage, the unsuccessful party may invoke section 65.1 of the Supreme Court Act. The procedural and substantive aspects of proceedings under section 65.1 have been largely developed in the nearly three decades since it originally came into force. The key points for appellate counsel include the following:

• Although section 65.1 grants concurrent jurisdiction to the Supreme Court of Canada, the court appealed from, and the judges of either of those courts, the case law is less flexible. The moving party should generally seek a stay from the court that granted the order sought to be appealed from (in most cases, a court of appeal), except in exceptional circumstances.
• Moving parties generally have only one chance for a stay. Successive motions in the court of appeal and then, if unsuccessful, the Supreme Court are limited to special circumstances.
• The moving party must satisfy the usual three-part stay test from RJR-MacDonald Inc. v. Canada (Attorney General): (1) there must be a serious question to be determined; (2) there must be irreparable harm; and (3) the balance of convenience must favour granting the stay.
• The “serious question” element of the test is a low threshold, but it is measured against the stringent standard for obtaining leave to appeal to the Supreme Court, which generally requires the applicant to demonstrate that the case would raise issues of public importance.
• If the motion is brought in the court sought to be appealed from, the moving party need not necessarily file its application for leave to appeal before bringing the motion. However, in such cases, the court must be satisfied that “the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice” (subsection 65.1(2)).

The Court of Appeal’s recent decision in Donovan v. Sherman Estate provides useful guidance regarding this last criterion in the context of civil appeals, in particular in relation to sealing orders.

Application to the ‘unsealing’ order in Donovan

In Donovan, Justice van Rensburg was satisfied that the requirements of subsection 65.1(2) were met. There was no question that the moving parties intended to apply for leave to appeal; they had clearly articulated the grounds they intended to argue for leave; and they satisfied the “miscarriage of justice” requirement because “[i]t was essential that they move quickly for a stay, before they had served and filed their notice of application for leave to appeal, as this court’s order allowing the appeal provided for the Sealed Documents to be unsealed within ten days” (para. 7).

Justice van Rensburg indirectly expanded upon this conception of “miscarriage of justice” when applying the RJR-MacDonald test. The prospective appeal had arguable merit and, if the stay were refused and the sealed materials released into the public domain, the moving parties would suffer irreparable harm because their appeal would be rendered moot. That is, if the sealed materials were released, “the horse will be out of the barn” (paras. 20-21). In contrast, granting the requested stay would preserve “the status quo during the relatively short period of time required for the determination of the moving parties’ application for leave to appeal to the Supreme Court” (para. 23). It was thus in the interests of justice to stay the ‘unsealing’ order pending the leave application.

The factors that the Court considered in Donovan—which amounted to a potential “miscarriage of justice” for purposes of subsection 65.1(2)—provide guidance for future cases involving sealing orders. Although stay motions are decided on their specific facts, Donovan will likely prove to be a useful precedent where the order sought to be appealed would unseal confidential court materials.