Michael Lesage plans to appeal to the Supreme Court of Canada
The Ontario Court of Appeal has dismissed the appeal brought by the litigator and former law society bencher seeking Superior Court civil proceeding data to illustrate the extent of trial delays.
Largely relying on the open court principle, Michael Lesage sought data on the number of Superior Court civil trials in Toronto, Newmarket, Durham, Hamilton, Brampton, and Milton from 2015 to 2018, and from 2020 on. After the court denied his request, Lesage brought an application to the Superior Court for declaratory relief and a mandamus order requiring the Ministry of the Attorney General to release the information. He was denied in a decision released last November.
The Court of Appeal’s panel, Justices James MacPherson, David Paciocco, and Darla Wilson jointly wrote the reasons in Lesage v. Ontario (Attorney General), 2024 ONCA 500.
“The Court of Appeal, not only did it clarify the law in Ontario and Canada, but it effectively set the law that the release of court documents is now entirely at the discretion of the judiciary, which I think is problematic in a democracy,” says Lesage.
“We’ll be seeking leave to appeal to the Supreme Court on this. Ideally, to have the decision overturned… that the public – and the press, on their behalf – effectively have no right to obtain any court documents that the court doesn't want to willingly provide to them.”
Lesage practises in the Greater Toronto Area and Niagara region, advising clients on business law, personal injury, and in malpractice and negligence cases.
The Superior Court had denied Lesage’s mandamus request for jurisdictional reasons. The court found that granting the declaratory relief he sought would serve no practical purpose and that while the open court principle would grant the public the ability to view and copy court documents, it does not require the court to aggregate, sort, and categorize bulk data.
The court also found that, even if the open court principle did extend to ground Lesage’s request, the decisions on document access and disclosure “rests exclusively with the court.”
Lesage appealed the denial of the declarations but not the denial of mandamus. The appeal court concluded that the issue of whether the declaratory relief would serve a practical purpose was sufficient to dispose of the appeal.
The Court of Appeal said that, under the Courts of Justice Act, Superior Court justices are empowered to make declarations but not required to make them and possess “the broadest judicial discretion” in this area. The court declined to interfere with the application judge’s discretion, noting that the judge relied on the legal proposition that declaratory relief should only be used when the declaration will “have an effect on an existing dispute between the parties.”
The appeal court said that the application judge’s conclusion that the relief would be “detached from the rights of the parties and in no way determinative of them” is “unassailable.” Aside from Lesage, the other party before the application judge was the Ministry of the Attorney General (MAG). The court said the MAG lacks the power to decide whether to identify, compile, and produce the requested information because that authority rests with the judiciary, according to the constitutionally protected principle of judicial independence.
The court said that the application judge’s conclusion that judicial independence requires the judiciary have control over access to and disclosure of its information “undermines any real prospect” that the declarations would assist Lesage in securing the compiled information he sought.
Counsel for the AGs of Ontario and Canada did not respond to requests for comment.
