Case Name:

G. v. British Columbia College of Teachers

Between

Mr. G., applicant, and

British Columbia College of Teachers, respondent

[2004] B.C.J. No. 944

2004 BCSC 626

Vancouver Registry No. L040911

 British Columbia Supreme Court

 Vancouver, British Columbia

Burnyeat J.

(In Chambers)

Heard: April 14, 2004.

 Judgment: May 7, 2004.

(40 paras.)

Civil evidence -- Documentary evidence -- Publication bans and confidentiality or sealing orders -- Professional responsibility -- Discipline -- Appeals and judicial review -- Professions -- Other -- Teachers.

Application by G for leave to appeal a decision by the Council of the British Columbia College of Teachers. G also applied for an order permitting him to identify himself and the other person involved by their initials throughout the appeal. G had been the subject of a disciplinary hearing before a Panel of the College. Following the parties' joint recommendations, the Panel adopted an agreed statement of facts and admissions, as well as the proposed penalty. The Panel, however, also recommended that the Council publish G's full name in its decision. G opposed this latter recommendation, and applied for this order ensuring anonymity until his appeal was heard. The College agreed not to publish its decision until the appeal of the decision to publish G's full name was heard.

HELD: Application allowed. G was entitled to anonymity throughout his appeal. The presumption of openness of court proceedings was overcome by the need to protect the overriding public interest that G received a fair hearing on his appeal. Also considered were the effect the publication of G's name would have on both G's children and the school at which he worked. The public interest and right to know of the discipline of teachers was served by publishing the decision using only initials. G's full name could be published subsequently if his appeal was unsuccessful. In circumstances where an appellant seeks to protect a right of confidentiality by way of appeal, the appellant's confidentiality should be maintained until the appeal is heard, so that, if the appeal was allowed, anonymity could be honoured.

Statutes, Regulations and Rules Cited:

Teaching Profession Act, R.S.B.C. 1996, c. 499, s. 40.

Counsel:

H.A. Mickelson and L.C. Fong, for Mr. G.

I.B. Hayward, for the British Columbia College of Teachers.

1 BURNYEAT J.:-- Mr. G. is a teacher and was the subject of a hearing before the Hearing Sub-Committee ("Panel") of the British Columbia College of Teachers ("College"). The hearing proceeded with the parties jointly recommending that the Panel adopt an agreed statement of facts and admissions and the proposed penalty of a reprimand. There was no agreement about whether the full name of Mr. G. should be published in the publications of the College.

2     The Panel accepted the recommendations made by the parties but decided that the full name of Mr. G. should be released to the public along with a summary of the circumstances of his case. That recommendation was made to the Council of the College and the Council accepted and adopted the recommendations of the Panel including the publication of the full name of Mr. G.

3     This application is for leave for the Applicant to commence an appeal by identifying himself only as "Mr. G." and that Mr. G., his children and the primary person involved in events, (Ms. M.), be referred to by initials for all purposes in the intended appeal. The College has agreed not to publish its decision until an appeal of the decision of the Council to publish the full name of Mr. G. has been heard.

SUBMISSIONS OF THE PARTIES

4     Mr. G. submits that the publication of his full name in these proceedings prior to the appeal being heard on the merits would render the appeal moot and would cause irreparable harm to his reputation and to his ability to teach. Mr. G. further submits that any public interest can be satisfied pending the appeal by the publication by the College of the circumstances of the case but without his name and that, if his appeal is unsuccessful, the College can then publish his name.

5     The College submits that, as a matter of general principle, matters must be heard in open court and the presumption of openness of the court and all of its proceedings should prevail in this case. The College submits that Mr. G. has not exhibited any grounds to depart from the strong presumption of openness in the courts and, in order for there to be a restriction on the form of the style of cause as is requested by Mr. G., Mr. G. must prove that to do so is necessary to protect the public interest or a societal value of super ordinate importance and that this has not been shown.

6     The College also submits that the decision in Mitchell v. British Columbia College of Teachers, [2004] B.C.J. No. 363 (B.C.S.C.) determines the issue which is the subject matter of this application, that this decision can not be distinguished, and that the decision in Mitchell is therefore binding.

STATUTORY, BY-LAW, AND COLLEGE POLICY PROVISIONS

7     Section 40 of the Teaching Profession Act, R.S.B.C. 1996, c. 499 ("Act") establishes the right of appeal from a decision of the College:

          A member may appeal to the Supreme Court any decision, determination or order of the qualifications committee, discipline committee, a subcommittee of either, or the council that affects the member and, from a decision, determination or order of the Supreme Court, may appeal to the Court of Appeal with leave of a justice of that court.

8     The by-laws of the College provide that the hearings of the Hearing sub-Committee shall be closed and that: "... information which would identify a child witness or a child who is alleged to be the victim of misconduct or conduct unbecoming a member shall not be disclosed to the public". Where there has been "adverse determination" made against a teacher, the Hearing sub-Committee shall direct the Registrar of the College to publish a summary of the circumstances of any decision, any action taken and reasons therefor.

9     By-laws 6.S.03 through .06 state:

          If the respondent requests that their name be withheld from publication, the Hearing Sub-Committee may order that the respondent in the case not be identified in a summary published in accordance with 6.S.01 where:

(a)     the penalty imposed does not include termination of membership and/or cancellation of certification; and

(b)     publication will cause grievous harm to the respondent or another identifiable individual that outweighs the interests of the public and the College in full publication.

          Notwithstanding 6.S.03, where the respondent's name would identify a victim or victims, the Hearing Sub-Committee may withhold publication of the respondent's name.

          Where the Hearing Sub-Committee determines not to identify the respondent in a summary, it shall give reasons for its decision.

          The Council shall establish policies which establish when the names of victims, witnesses or complainants may be published in any summary circulated or published.

10     The Policies established by the College include the following:

(a)     Council recognizes its responsibility, in the public interest, to report in a discipline case summary the name and other pertinent information concerning a respondent who has been disciplined by the College.

(b)     As exceptions to ... (a), Council may consider withholding the publication of a respondent's name. In such cases, Council may consider in its deliberations the circumstances of the case and relevant factors, such as:

(i)      the need for transparency of the College's discipline process to enhance the community's confidence in the professional self-regulation of the teaching profession;

(ii)     the deterrent effect of publication on misconduct;

(iii)    the need to educate the profession and the public about professional standards;

(iv)    the nature of the respondent's conduct, its frequency and date(s) of occurrence;

(v)     the respondent's response or position regarding the matter in question;

(vi)    any penalty or other adverse consequences the respondent has received;

(vii)   the respondent's current situation or circumstances;

(viii) the respondent's conduct or record prior to and following the events under review;

(ix)    any previous relevant Council decisions;

(x)     evidence of any potential harm of publication to third parties;

(c)     Where Council has determined to withhold the publication of a respondent's name, it shall provide reasons for its decision.

DISCUSSION AND CASE AUTHORITIES

11     In dealing with whether the decision in Mitchell, supra, is a binding authority, a review of that decision indicates that a number of authorities were not before the Court when the application of Ms. Mitchell to amend the style of cause to allow anonymity was heard. The most complete statement regarding the presumption of openness of all court proceedings and the limited exceptions to that principle is set out in Scott (Otherwise Morgan) et al v. Scott, [1913] A.C. 417 (H.L.), where the Court dealt with the question of whether it was appropriate to have an in camera hearing of a petition which sought a declaration that a marriage was void because of the impotence of the respondent. Viscount Haldane L.C. stated that the Rules of Court:

          ... lay down that the administration of justice must so far as the trial of the case is concerned, with certain narrowly define exceptions to which I will refer later on, be conducted in open court." (at p. 434).

12     The Chancellor then concluded:

          While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. ....

          It may often be necessary in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it, therefore yields to the paramount duty, which is the care of the ward or the lunatic. The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, persistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience. but on necessity. ....

          But unless it be strictly necessary for the attainment of justice, there can be no power in the court to hear in camera either a matrimonial cause or any other where there is a contest between parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to show that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. But this further conclusion he will find more difficult than in the case of the secret process, where the objection to publication is not confined to the mere difficulty of giving testimony in open Court. In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors. ....

          A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order was not made. (at pp. 437-9)

13     Earl Loreburn concluded that the High Court did not have an unqualified power in its discretion to hear civil proceedings behind closed doors but acknowledged that there would be exceptions such as where the subject matter of the action would be destroyed by a hearing in open court, where the apprehension or actual tumult or disorder justified the exclusion of those from whom interruption was expected or where witnesses were ordered to withdraw so that they could not "trim" their evidence by hearing the evidence of others. Lord Loreburn also stated:

          It has been held that when the subject-matter of the action would be destroyed by a hearing in open court, as in a case of some secret process of manufacture, the doors may be closed. I think that this may be justified upon wider ground. (at p. 445)

          It would be impossible to enumerate or anticipate all possible contingencies, but in all cases where the public has been excluded with admitted propriety, the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or because the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court. (at pp. 446)

14     Lord Atkinson referred to the decision in Andrew v. Raeburn L.R. 9 Ch. 522 where Lord Cairns in giving judgment stated:

          If it had appeared to me that this was a case in which a hearing in public would cause an entire destruction of the whole matter in dispute, I should have taken time to consider whether it was consistent with the practice of the Court to hear it in private even without the consent of the parties, in order to prevent an entire destruction of the matter in dispute. (at p. 523)

15     The decision in Scott was cited with approval in Re Medical Act; Re Doctor A (1965) 53 W.W.R. 313 (B.C.S.C.) where the applicant medical doctor sought leave to have an in camera hearing of his appeal from a decision of the Council of the College of Physicians and Surgeons which had deprived him of the right to practice. Collins, J. was of the opinion that the speeches of the majority of the Court in Scott established a fourth exception to the broad principle that the administration of justice must be carried on in public and that: "... such exception exists in order that justice may be done". (at p. 316)

16     In deciding that the appeal would be heard in camera and that the designation "Dr. A." could be used for the purpose of the appeal, Collins, J. concluded:

          I have confidence that justice will be done on the appeal in question even although it be not held in public, and I believe that unless the public be excluded, the appeal will probably not be heard at all for fear of destroying that which the appeal is sought to preserve. (at p. 316)

17     In A.(J) v. Canada Life Assurance Co. (1989), 70 O.R. (2d) 27 (Ont. H.C.), the intended plaintiffs sued an insurance company because an examining physician disclosed their positive test results for the A.I.D.S. virus without permission. The Learned Master ruled that the plaintiffs could not proceed by pseudonyms, 66 O.R. (2d) 296. Fitzpatrick, J. allowed the appeal of the intended plaintiffs, 66 O.R. (2d) 736. In denying leave to appeal the order of Fitzpatrick, J., Granger J. stated:

          In the present case, the question of whether the disclosure of John A.'s and James B.'s medical condition was proper is vital to the final issue in the action. Disclosure of the names of the intended plaintiffs would effectively destroy the right to confidentiality which they are seeking to protect through their intended action. Consequently, I do not accept Canada Life's argument that the substitution of Fitzpatrick J.'s discretion for that of the Master Clark constitutes grounds to doubt the correctness of the order.

          Canada Life also submits that the decision of Fitzpatrick J. is incorrect in light of the traditions of independence and impartiality of the Courts of Justice in Ontario which require that proceedings be held in public.

          There is no Canadian jurisprudence which recognizes the right of a proposed litigant who is an actual or potential AIDS sufferer to remain anonymous. However, this issue arose in the English decision, X. v. Y., [1988] 2 All E.R. 648 (Q.B.), in which the health authority commenced an action against a newspaper, to prohibit it from identifying two practising doctors who had contracted AIDS. Rose J. observed at p. 661:

          I keep in the forefront of my mind the very important public interest in freedom of the press. And I accept that there is some public interest in knowing that which the defendants seek to publish (in whatever version). But in my judgment those public interests are substantially outweighed when measured against the public interests in relation to loyalty and confidentiality both generally and with particular reference to AIDS patients' hospital records. ... The deprivation of the public of the information sought to be published will be of minimal significance if the injunction is granted; for without it, all the evidence before me shows that a wide-ranging public debate about AIDS generally and about its effect on doctors is taking place among doctors of widely differing views, within and without the BMA, in medical journals and in many newspapers, including the Observer, the Sunday Times and the Daily Express.

          In the present case, Fitzpatrick J. found that the intended plaintiffs' interest "in preserving their anonymity in the circumstances of this case ... outweighs the concerns and difficulties carefully and accurately set out by the master" [p. 736]. The "balancing of interests" approach taken by Fitzpatrick J., particularly as it relates to the issue of AIDS, is consistent with the decision in X. v. Y., supra. Although the issue is of considerable importance, there is no reason to doubt the correctness of the order of Fitzpatrick J. and, accordingly, leave to appeal is denied. (at pp. 32-3)

18     In Doctor Q. v. College of Physicians and Surgeons of British Columbia (1999) 62 B.C.L.R. (3d) 375 (B.C.C.A.), Donald, J.A. on behalf of the majority dealt with an appeal by Dr. Q. over a refusal of the learned chambers Judge to allow anonymity during a Supreme Court appeal from a decision of the College of Physicians and Surgeons and to grant an injunction preventing the College from releasing a summary of the case to the media. In the context of the injunction sought, Donald, J.A. stated:

          Absent from the analysis in the decision under appeal is any recognition that the College could immediately publish a notice which informs the public of the discipline without releasing the doctor's name. If the appeal fails it could then release the name in a subsequent notice. In that way the public could be assured that the College is doing its job in disciplining members for misconduct while fairly protecting the reputation of a doctor who may succeed in overturning the discipline on appeal. (at p. 379)

          As I see it, this is a case where the applicant for an injunction will suffer irreparable harm if it is refused and the opposing party will suffer virtually no harm if it is granted. The public interest is sufficiently met by the protective conditions of practice and by a timely publication of discipline of an as yet unnamed doctor. Thus, a proper balancing of interests did not occur in this case. (at p. 379)

19     In his decision reported at (1998), 159 D.L.R. (4th) 727, the learned chambers Judge had recognized that a release of the findings as well as the identity of the applicant would cause:

          ... serious harm particularly if he is successful in his appeal. It may well be said that if the applicant is successful, his exoneration will indeed be hollow for the damage to his reputation may be irreparable. (at p. 732)

20     The learned chambers Judge had also referred to and relied on the decision in Roed v. Association of Professional Engineers of British Columbia (1988), 29 B.C.L.R. (2d) 59 (B.C.C.A.). However, Donald, J.A. indicated that the decision could be "readily distinguished" on the basis that Dr. Q. had to inform his patients and referring physicians that he had been disciplined and that he had to have a chaperone present while attending female patients whereas there was no arrangement to protect the public in Roed so that publication was necessary to accomplish that purpose:

          If in the present case an injunction is granted, the public interest in knowing the doctor's name will merely be postponed. If Dr. Q. is cleared on appeal then his reputation will not be ruined in the meantime. (at p. 380)

21     In dealing with the decision in Roed, Donald, J.A. observed that the Court was of the view that a request for a ban on publication was unprecedented but that the Court was not referred to the decision in King v. Institute of Chartered Accountants of Alberta (1983), 25 Alta. L.R. (2d) 286 (Q.B.) where publication was postponed by Purvis, J.:

          I am also concerned to protect the appellant from the very considerable damage which would be done to his professional reputation by publication pursuant to the order of the council. It would be unfortunate if this damage were caused by publication following which the Court of Appeal reversed the action of the institute. (at p. 287)

22     Donald, J.A. also referred to the decision in Shackleton v. Nova Scotia Board of Examiners in Psychology (1991), 103 N.S.R. (2d) 426 (M.S.S.C.) which was decided subsequent to Roed and where Roscoe, J. stated:

          The other portion of the penalty, that is, to publish, may add greater protection to the public, but it is also the part that causes the greatest harm to Dr. Shackleton if his appeal of the decision of the Board is successful. ....

          I am therefore prepared to order that the application be dismissed with respect to the suspension and terms for reinstatement, but that it be granted, that is, a stay be granted pending the appeal on the part of the penalty decision that deals with publication - all parts of the publication of the notice of suspension of Dr. Shackleton. (at p. 430)

23     Donald, J.A. then concluded that the injunction should be granted:

          While it may be said that the primary goal of the confidentiality is to protect complainants, I think it is also true to say that doctors are intended to be protected. There is a public interest in not damaging professional reputations unnecessarily. (at p. 382)

24     Although the judgment of Donald, J.A. in Dr. Q did not deal with the issue of anonymity directly, the appeal and the subsequent proceedings were all undertaken utilizing the anonymity of "Dr. Q.".

THE DECISIONS IN MITCHELL V. BRITISH COLUMBIA COLLEGE OF TEACHERS

25     Mitchell v. British Columbia College of Teachers [2003] B.C.J. No. 3056 (B.C.S.C.) dealt with an appeal from a decision of the College cancelling the appellant's certificate of qualification and terminating her membership in the College. The appeal was allowed, a penalty substituted for the one that had been imposed by the College, and an order was made that the appellant's name would not be published in the case summary as she found that the decision to publish the appellant's identity was found to be unreasonable.

26     In Mitchell v. British College of Teachers [2004] B.C.J. No. 363 (B.C.S.C.), Humphries, J. dealt with a motion for an order retroactively amending the style of cause to substitute initials for the name of the appellant and for an order that the court file be sealed. The position taken by the College was that steps should be taken to protect the identity of the complainant but that the style of cause should not be amended. There had been a previous order that the College not publish the name of the appellant in their summary of disciplinary proceedings. The position of the appellant was that to publish her name in the style of cause would be inconsistent with that ruling and would, in effect, defeat it, would increase the punishment occurred, and would vitiate the orders made in the previous civil and criminal proceedings in which publication bans were made.

27     In her decision, Humphries, J. referred to the decisions in R. v. Mentuck [2002] 2 W.W.R. 409 (S.C.C.); Canadian Broadcasting Corp. v. New Brunswick (Attorney-General) (Re R. v. Carson), [1996] 3 S.C.R. 480; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522; Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835; Doe v. Church of Jesus Christ of Latter-Day Saints in Canada (2003) 37 C.P.C. (5th) 259 (Alta. Q.B.); Orpin v. College of Physicians and Surgeons of Ontario (1988) 25 C.P.C. (2d) 19 (Ont. D.C.); A. v. C. [1994] B.C.J. No. 488 (B.C.S.C.); F. v. Council of the College of Physicians and Surgeons of British Columbia, [1989] B.C.J. No. 1075 (B.C.S.C.); A.B. v. College of Physicians and Surgeons of British Columbia [1994] B.C.J. No. 785 (B.C.C.A.); Hirt v. College of Physicians and Surgeons of British Columbia, [1985] B.C.J. No. 2174; Re: British Columbia College of Teachers [2000] B.C.J. No. 140 (B.C.S.C.); and MacIntrye v. Nova Scotia (Attorney-General), [1982] 1 S.C.R. 175.

28     After noting that the Supreme Court of Canada had tied the right of freedom of expression guaranteed by s. 2(b) of the Charter to the principle of open courts and the rights of members of the public to obtain information about the courts, Humphries, J. then concluded:

          No cases were cited to me which have ordered any restriction of publication of court proceedings to protect the confidentiality of a person in the appellant's position, that is a person who has already been found guilty of professional disciplinary offences. On the contrary, preliminary applications by litigants in the appellant's position to be allowed to bring petitions or appeals under pseudonyms or to otherwise restrict public access to their court proceedings have generally been unsuccessful. ....

          The general principle emerging from the cases cited above is that a private interest or embarrassment is not enough to justify an exception to the general rule of openness of court proceedings, even where the private interest is the protection of one's livelihood; there must be a public interest or a social value of superordinate importance at stake.

          In these preliminary applications, the courts have applied the same test which would apply to any application for injunctive relief, bearing in mind the strong presumption that all court hearings should be open to the public: whether there is a serious issue to be tried, whether irreparable harm will flow from failure to make the order, and how the balance of convenience lies between the parties and in relation to the public interest.

          The circumstances before me are somewhat different from those in the cases cited above in that the application is being made after the hearing. The injunctive tests are easier to assess in this context and are clearly in the appellant's favour.

          There was an important issue to be tried. The harm to the appellant by the publicity which will likely follow upon publication of reasons which include her identity may well be irreparable. The infringement of the public's right to be fully informed is minimal - all of the facts are set out in the judgment, and the incidents took place almost twenty years ago. No one will be affected by the decision to conceal the appellant's identity, other than the appellant herself. No one is in danger; there never was any risk of the appellant re-offending.

          The remaining consideration is the background against which one must assess these tests: the presumption of openness of the courts, and the necessity for the appellant to show that the orders sought are necessary in order to protect a public interest or a societal value of superordinate importance (see Nova Scotia (Attorney General) v MacIntyre [1982] 1 S.C.R. 175).

          One of the issues before me on the appeal was the whether the public interest required the publication of the appellant's name in the respondent's disciplinary summary. I held it did not. It is therefore a necessary corollary of that ruling that the public interest is engaged in the consideration of whether the appellant's name should be concealed in these proceedings?

          In my view it is not. Courts have always recognized that the public interest requires protection of the innocent. Where publication bans have been imposed, it has invariably been to protect the name of a complainant or victim, or possibly an alleged perpetrator. Once a finding of guilt has been made, as it has here and which the appellant did not appeal, the only arguments in favour of restricting public access to the information - privacy interests, embarrassment, effect on reputation and livelihood - are not sufficient to outweigh the constitutional right of freedom of expression.

          The publication bans in the prior civil and criminal trials here were ordered to protect the identity of the complainant, so there is no inconsistency if a ban is not ordered in these proceedings to protect the identity of the appellant. While I have concern that the effect of refusal of the ban does indeed appear to be to defeat the effect of my earlier order that the appellant's name not be published in the disciplinary summary, this is a separate and distinct type of proceeding over which the presumption of full public access prevails.

          The appellant has not presented any basis upon which to displace this presumption. The application for an amendment to the style of cause and for a publication ban in order to protect the identity of the appellant is dismissed. There will be a publication ban on any information that might directly or indirectly reveal the identity of the complainant. (at paras. 12-21)

IS THE DECISION IN MITCHELL BINDING?

29     In Re Hansard Spruce Mills Ltd. [1954] 4 D.L.R. 590 (B.C.S.C.), Wilson, J., as he then was, was invited to disagree with the judgment of another Judge of the Supreme Court. After commenting that the Court of Appeal could overrule itself in order to settle the law, Wilson, J. stated:

          But I have no power to overrule a brother Judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight. (at p. 592)

30     Wilson, J. concluded that he could only go against a judgment of another Judge of the Court if:

(a)     Subsequent decisions have affected the validity of the impugned judgment;

(b)     It is demonstrated that some binding authority in case law, or some relevant statute was not considered;

(c)     The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial required an immediate decision without opportunity to fully consult authority.

          If none of these situations exist I think a trial Judge should follow the decisions of his brother Judges. (at p. 592)

31     As I can not conclude that the decision was unconsidered or that subsequent decisions have affected the validity of the decision, the question is whether the decision in Mitchell can be distinguished on the basis of the facts which were before Humphries, J. or on the basis that there was binding authority which was not considered as it was not drawn to her attention.

32     However, I am satisfied that I am not bound by the decision reached in Mitchell. First, the decisions in Scott; Andrew v. Raeburn; A.(J) v. Canada Life Assurance Co; Re Dr. A; Dr. Q. and King, supra, were not drawn to the attention of the Court. Accordingly, the decision in Mitchell came without the consideration of binding authority creating an established exception that the Court may sit in camera or may allow anonymity where the administration of justice would be rendered impracticable, the subject-matter of the action would be destroyed by a hearing in open court, a professional reputation would be damaged unnecessarily, the disclosure of the names of the intended plaintiff would effectively destroy the right of confidentiality sought in the matter which will be before the Court so that the very issue to be heard on the appeal would be made moot, anonymity is required in order to protect the right to a fair trial, the disclosure of the name would effectively destroy the right to confidentiality until the appeal could be heard, or where the appeal might not be launched at all if anonymity was not available.

33     Support for this established exception to the general rule can also be found in two of the decisions which were referred to the Court. In Sierra Club, supra, the Crown Corporation sought a confidentiality order for documents provided by the Republic of China on the condition that they remain confidential. The ban was allowed by the Court as the circumstances met the common law balancing test formulated by the Court in light of the values established by the Charter and the particular interest being protected in the case. Iacobucci, J. emphasized the possibility that the refusal to make such an order would hinder the appellant's capacity to make full answer and defence:

          As both the motions judge and the Federal Court of appeal found that the information contained in the Confidential Documents was relevant to defences available under the CEAA, the inability to present this information hinders the appellant's capacity to make full answer and defence, or, expressed more generally, the appellant's right, as a civil litigant, to present its case. In that sense, preventing the appellant from disclosing these documents on a confidential basis infringes its right to a fair trial. Although in the context of a civil proceeding this does not engage a Charter right, the right to a fair trial generally can be viewed as a fundamental principle of justice: M. (A.) v. Ryan [1997] 1 S.C.R. 157 (S.C.C.), at para. 84, per L'Heureux-Dubé J. (dissenting, but not on that point). Although this fair trial right is directly relevant to the appellant, there is also a general public interest in protecting the right to a fair trial. Indeed, as a general proposition, all disputes in the courts should be decided under a fair trial standard. The legitimacy of the judicial process alone demands as much. Similarly, courts have an interest in having all relevant evidence before them in order to ensure that justice is done.

          Thus, the interest which would be promoted by a confidentiality order are the preservation of commercial and contractual relations, as well as the right of civil litigants to a fair trial. Related to the latter are the public and judicial interests in seeking the truth and achieving a just result in civil proceedings. (at p. 542-3)

34     In Mentuck, supra, the Court allowed a confidentiality order to protect the identity of undercover officers on the basis that it was needed to protect the proper administration of justice:

          In assessing whether to issue common law publication bans, therefore, in my opinion, a better way of stating the proper analytical approach for cases of the kind involved herein would be:

A publication ban should only be ordered when:

(a)     such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b)     the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. (at p. 428)

35     I am also able to distinguish the decision reached by Humphries, J. in Mitchell on the basis that the name of Ms. Mitchell had already been used in the style of cause in the appeal from the decision of the College including the motion before the Court to retroactively amend the style of cause in order to provide anonymity. The "damage was already done". In the case at bar, the Order is sought prior to the commencement of the proceedings to appeal the decision of the College to publish the full name of Mr. G. in the information which will be disseminated by the College. As well, Humphries, J. does not decide that an order for anonymity could never be granted but only that, on the balancing of the factors which were before her, Ms. Mitchell had not satisfied the onus of showing that her interest for anonymity outweighed the interest of openness.

DECISION

36     I am satisfied that the presumption of the openness of all court proceedings has been overcome by the factors which are present in the case at bar. If justice is to be attained and Mr. G. is to have a fair hearing of the question of whether the decision of the College to publish his full name should be overturned, that can only be accomplished if he has anonymity until the appeal can be heard. The public right to know of the discipline of teachers can be served by publishing what has occurred to date using only initials with a subsequent publication of the full name of Mr. G. if his appeal is unsuccessful: "Dr. Q., supra.

37     If the full name of Mr. G. is set out in the style of cause, it would effectively destroy the right of confidentiality which he seeks to protect through the intended appeal from the decision of the College. In those circumstances, it should inevitably be the case that an appellant's right to confidentiality should be maintained until the appeal can be heard so that, if the appeal is allowed, anonymity can be honoured. If the appeal is not allowed, then no great public interest has been lost in the interim as the full name of the appellant will then be published.

38     As well, I take into account the particular circumstances of Mr. G. One of the school-aged children of Mr. G. suffers from clinical depression and, at the time of the hearing before the panel, the family physician advised that publication of the name of Mr. G. would cause the child to suffer a "major adverse setback" that could "potentially have very dire consequences". As well, the principal of the school where Mr. G. teaches stated in his submissions before the Panel that: "It would be difficult to hold the respect of your students and parents with your "dirty laundry" open to the public" and that publication "would be punitive to both the teacher and to the school at which he works".

39     In the case at bar, I am satisfied that anonymity is necessary to protect the overriding public interest to see that Mr. G. is entitled to a fair hearing of the very subject matter of his appeal.

40     Subject to further order of the Court, Mr. G. will be entitled to anonymity throughout his appeal by being identified only as "Mr. G.", the primary person involved in events will be identified only as Ms. M. and the names of the children of Mr. G. will be referred to either by initials or simply by not using their names.

BURNYEAT J.

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