I- The facts
The Integrated University Health and Social Services Center of the West Island of Montreal ("CIUSSS") requests the removal of the sealed items for the duration of the proceedings, after having withdrawn his appeal against a former employee of a hospital center affiliated to the CIUSSS. Relying on Article 108 (2) of the Code of Civil Procedure (" CCP ") 2 , the latter pleads the need to protect the confidential elements contained in the proceedings and the obligation to withdraw the documents produced in the file once the proceedings are over .
Defendant M. K. concurrently requests the withdrawal of the motion to institute proceedings , relying on his right to withdraw a pleading provided for in Article 206 CCP 3 . He is of the opinion that the proceedings and exhibits contain potentially defamatory allegations against him and that they should not be accessible to the public.
These two requests are challenged by the press company MédiaQMI, which calls for the end of the seals ordered during the proceedings. The latter invokes the general principle of advertising as well as the public interest surrounding the documents put in evidence, which relate to the management of the resources of a public body.
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II- The decision
The court concludes that the interlocutory documents and proceedingsmay be removed from the court record, but that the originating application must remain there and be made public.
According to the court, there will be an exception to the principle of public hearing 4 if the protection of the dignity of a person or important legitimate interests justifies it 5 . Where appropriate, confidentiality orders may be issued, provided that the criteria established by the Supreme Court 6 are met: the order must be necessary to remove a serious risk to the proper administration of justice and its beneficial effects must be superior to its detrimental effects 7 .
Once proceedings have been completed, the parties have full discretion to remove the documents and remove them from the public eye 8 . The procedural rules therefore allow the parties to withdraw the pleadings they have filed, with the exception of the originating motion.
Since the Superior Court is a court of record, 9 each record retains in perpetuity the pleadings that initially led to its opening. This could nevertheless be sealed under the above criteria of the Supreme Court. According to the judge, the evidence administered in this case does not give rise to the imposition of such a measure.
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III- The comment of the authors
Over the years, case law has repeatedly relied on the role of the Superior Court's "court of record" in justifying the refusal to withdraw proceedings instituting proceedings of the Court's records [0 . In the decision under review, the judge also interprets sections 206 to 208 and 213 CCP as preventing the withdrawal of the application instituting proceedings 11 . Our reading of these provisions rather encourages us to consider that such a withdrawal remains possible after the end of the proceeding. Moreover, Article 206 CCP deals with the withdrawal of a "procedural document" 12 , which, in our view, includes the originating application.
Here, the judge refuses to seal the originating application for two reasons. First, he believes that the facts proved do not satisfy the conditions established by the Supreme Court 13 . In a second step, based on an analogy with a principle of criminal law, he concludes that the disclaimer "does not equate to the recognition that MK would be safe from reproach" and that the latter can not benefit from the "exception of the innocent" for this reason 14 . This principle means that once a search warrant is executed, it is normally possible to prevent the public from being informed 15 unless the search has proved fruitless.
We do not believe that this second ground is relevant to determine whether it is necessary to preserve the confidentiality of documents filed in civil matters. Unlike the criminal law, the very purpose of the civil remedies and the applicable burden of proof make it difficult to determine - during the proceedings or after an out-of-court settlement - whether the party concerned is "immune from reproach". In our view, the test in Globe and Mail 16 is sufficient to protect the legitimate interests of the parties.
This decision sets a precedent in that it distinguishes between pleadings in the course of proceedings - which can be removed from the court record once the proceeding is over - and the originating motion. However, Article 206 CCP does not establish such a distinction to the extent that the withdrawal is requested after the proceedings have been terminated.
The Court of Appeal will have the opportunity to address the decision to study because at the time of this writing, a notice of appeal was filed by MédiaQMI 17 .