IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Aquilini v. Aquilini, |
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2012 BCSC 919 |
Date: 20120614
Docket: E120577
Registry: Vancouver
Between:
Taliah Aquilini
Claimant
And:
Francesco Aquilini
Respondent
Before: The Honourable Madam Justice Stromberg‑Stein
Oral Ruling on Application for Interim Sealing Order
In Chambers
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Counsel for the Claimant: |
T.L. Jackson |
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Counsel for the Respondent: |
G.K. Macintosh, Q.C. |
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Counsel for Luigi Aquilini, Elisa Aquilini, Roberto Aquilini, and Paolo Aquilini: |
P.R. Albi, Q.C. |
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Place of Hearing: |
Vancouver, B.C. |
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Place and Date of Judgment: |
Vancouver, B.C. |
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[1] THE COURT: By notice of application to the claimant, Taliah Aquilini, the respondent, Francesco Aquilini, seeks an order that only the parties and their counsel will have access to the contents of the court file in this proceeding, including, but not limited to, reasons for judgment, court orders, affidavits, and transcripts, without further order of the court and on notice.
[2] Luigi, Elisa, Roberto, and Paolo Aquilini seek leave to intervene in the application of Francesco Aquilini, since their interests in the Aquilini family companies, partnerships, and trusts will be open to public scrutiny.
[3] Two days have been reserved for the hearing of these applications, August 23 and 24, 2012. I am dealing solely with an application for an interim order pending the full hearing. As such, it is not for me to determine the merits of the application.
[4] By way of background, there has been a breakdown in the marriage of Taliah and Francesco Aquilini. The fallout has resulted in court proceedings to sort out custody, access, and financial issues. The matrimonial proceedings have and will likely continue to attract media attention because of the substantial Aquilini business interests, including the Vancouver Canucks.
[5] The foundation for Francesco Aquilini's application for an interim sealing order is threefold:
1. First, he anticipates custody and access to the four children of the marriage will be a central issue, and there is a real risk of substantial harm to the children and to a daughter from a prior relationship if protective measures are not in place.
2. Second, the proceedings, in dealing with the financial issues of Francesco Aquilini, require the valuation of Francesco Aquilini's interest in corporations, partnerships and trusts that are owned and controlled by his family. He and his family members assert that public disclosure of closely‑guarded financial information will impact on the privacy of other Aquilini family members who are not party to the matrimonial litigation, and will likely cause serious harm to the Aquilini family business interests.
3. Third, serious harm will likely result from the release of financial information that is the subject of confidentiality agreements.
[6] Intervenor status was granted by consent. Otherwise, the applications are opposed by Taliah Aquilini on the basis that the children are accustomed to and have coped well with public interest in their family. She says Francesco Aquilini has spoken publicly about the matrimonial proceedings and has engaged in public adulterous conduct in his private life. Ms. Aquilini maintains she has received substantial disclosure of financial information without a specific request to maintain confidentiality.
[7] I do not understand her to say that she has publicly disclosed the financial information. The Aquilini family disputes that she has received any financial disclosure without express or implied undertakings of nondisclosure.
[8] Ms. Aquilini argues that the public interest of having an open court process should override the private interests of Francesco Aquilini and the Aquilini family.
[9] The rationale for the public importance of an open court process has been reviewed extensively in the case law. In Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326 at 1337, the Court commented:
There can be no doubt that the courts play an important role in any democratic society. They are the forum not only for the resolution of disputes between citizens, but for the resolution of disputes between the citizens and the state in all its manifestations. The more complex society becomes, the more important becomes the function of the courts. As a result of their significance, the courts must be open to public scrutiny and to public criticism of their operation by the public.
[10] Further, at page 1361, the Court states:
In summary, the public interest in open trials and in the ability of the press to provide complete reports of what takes place in the courtroom is rooted in the need (1) to maintain an effective evidentiary process; (2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society; (3) to promote a shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them.
[11] I will turn to the Supreme Court Family Rules of British Columbia.
[12] The Rules have protective mechanisms in place that effectively amount to sealing orders, albeit with some minimal discretion on the part of the court. Rule 22‑8(1) provides that unless the court otherwise orders, no person except a lawyer, a party, a person authorized by a party, or a party's lawyer may search a registry file in a family case and have access to the information retained in the registry. However, there is concern in this case with respect to the ability of any lawyer unconnected to the parties to search the file.
[13] Rule 22‑8(5) provides that exhibits produced at the trial must be sealed in a secure manner and are not accessible by any person other than a party, a person authorized by a party, or a party's lawyer.
[14] Rule 5‑1(29) requires that anyone who accesses documents in a family file keep them in confidence; and Rule 5‑1(30) provides for a discretionary sealing of financial information where the court considers that public disclosure of any information would be a hardship on the person disclosing the financial information.
[15] I note that there has been no application by Francesco Aquilini in respect of these protective mechanisms in the Rules.
[16] Turning to the application for the interim sealing order, the three‑part test for interim or interlocutory injunctive relief is found in RJR‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311:
... First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
[17] In considering whether there is a serious question to be tried, the Court in RJR‑MacDonald commented:
There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case...
Further:
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
[18] The Court also noted that the issue of whether there is a serious question to be tried is determined on the basis of common sense and an extremely limited review of the case on the merits. Once past the first step of the test, the granting of interim relief is viewed as an equitable remedy which requires consideration of irreparable harm and the balance of convenience. Irreparable harm was explained as follows:
"Irreparable" refers to the nature of the harm rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.
[19] The balance of convenience determination must weigh the salutary effects of the interim order against its deleterious effects. The balance of convenience is measured between the parties and in relation to the public interest.
[20] In this case, the effect of an interim sealing order for Mr. Aquilini, pending the outcome of the application for a permanent sealing order in just over two months, is to protect personal and financial information that he believes may otherwise be open to the media and to business competitors. He does not want his children to face possible ridicule and humiliation. For his family, other than Taliah Aquilini, who are not parties to the litigation, it would protect their business and privacy interests.
[21] Further, and I think most important in this case, any confidentiality agreements that the family business has with third parties will be preserved until the application is heard, which might otherwise be lost irreparably in the absence of an interim order.
[22] It is unclear if there are any deleterious effects for the claimant if an interim order is granted.
[23] In the result, I am of the view that the balance of convenience favours an interim order be put in place until the full hearing on the merits of the application takes place in only a few weeks. There is minimal effect on the public interest in open trial proceedings or on the evidentiary process, particularly in view of the Rules which, as I have said, effectively amount to a statutory sealing order in any event.
[24] So the interim order is granted with modifications as follows.
[25] Only the parties and their counsel will have access to the contents of the court file in this proceeding. This order is in effect until a decision on the applications for a final order can be heard on August 23 and 24, 2012, or until further order of the court. This order does not include reasons for judgment and court orders, but does include affidavits and transcripts. The applicant is required to give notice to the media of the application to be heard August 23 and 24, 2012, in accordance with the court policy.
per: "Bauman C.J."
Stromberg‑Stein J.