



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Chellappa v. Kumar,









2016 BCCA 2




Date: 20160104

Docket: CA42613

Between

Anurahini
Chellappa

Appellant

(Claimant)

And

Niraj Deepak Kumar

Respondent

(Respondent)

And

Government of the
Province of British Columbia,
as represented by the B.C. Public Service Agency

Respondent

(Applicant)

And

British Columbia
Government and Service Employees Union

Respondent

(Respondent)




Before:



The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice Garson

The Honourable Mr. Justice Goepel




On appeal from:  An
order of the Supreme Court of British Columbia, dated
February 4, 2015 (
Chellappa v. Kumar
, New Westminster Registry Docket
E28935).




The Appellant appearing In Person



Anurahini Chellappa





Counsel for the Respondent,
Niraj Deepak Kumar:



Did not appear





Counsel for the Respondent,
Government of the Province of British Columbia, as represented by
the B.C. Public Service Agency



E.L. Ross





Counsel for the Respondent,
British Columbia Government and
Service Employees Union



P.R. Shklanka





Place and Date of Hearing:



Vancouver, British
  Columbia

November 3, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 4, 2016









Written Reasons by:





The Honourable Mr. Justice Goepel





Concurred in by:





The Honourable Madam Justice Kirkpatrick





The Honourable Madam Justice Garson








Summary:

Appeal from an order
permitting the use by non-parties of documents filed in the appellants family
law case. The appellant seeks to prevent the use of these documents in a labour
arbitration grievance on procedural and substantive grounds. Held: appeal
dismissed. The employer and union had standing to seek directions in the family
law case under R. 10-9(8) of the Supreme Court Family Rules. The appellant does
not enjoy an overriding right of privacy in regard to material filed in her
family law case. The Rules define the general scope of protection for a
litigants privacy interests in a family law proceeding. The employer accessed
the family law file in compliance with the Rules.

Reasons for Judgment of the Honourable
Mr. Justice Goepel:

[1]

This appeal addresses the tension between the open court principle and a
litigants privacy rights in a family law case. The matter has arisen in the
course of a labour arbitration grievance. The parties to the grievance, who are
not parties to the family law case, wish to rely on documents filed in the appellants
family law case. The appellant seeks to prevent the use of these documents by the
non-parties.

[2]

For the reasons that follow, I would dismiss the appeal.

BACKGROUND

[3]

To put the issues in context, it is first necessary to chronicle the two
separate legal proceedings.

[4]

The family law case is between the appellant, Anurahini Chellappa, and
her now-former husband, Niraj Deepak Kumar. Mr. Kumar takes no position on
the appeal.

[5]

The grievance concerns E.H., a friend of the appellant who testified on
her behalf in the family law case, and his employer, the Province of British
Columbia (the Employer). E.H. is represented by the British Columbia
Government and Service Employees Union (the Union). The Employer is
represented by the B.C. Public Service Agency (the PSA).

[6]

The appellant and Mr. Kumar began a relationship in 2005. They
married in February 2007 and their son was born in July 2007. The parties
separated in November 2007 and the appellant commenced the family law case in
December 2007.

[7]

The proceedings in the family law case have been contentious. Most of
the conflict has centered on issues of custody and access. There have been
numerous court applications and orders concerning those issues.

[8]

The family law case came on for trial in June 2011. In reasons dated
June 27, 2011, the trial judge awarded the appellant sole custody of their son with
generous access to Mr. Kumar. The trial judge seized himself of further
applications. In his reasons, the trial judge also made several comments that
were critical of E.H.s conduct in relation to the family law case.

[9]

Prior to December
2013, E.H. was employed as a child protection social worker with the Ministry
of Children and Family Development. In January 2011, E.H. was suspended for
five days (the Suspension). The stated reason for the Suspension was E.H.s conduct
in supporting the appellant in the family law case.

[10]

The Union grieved the Suspension. This grievance did not come on for arbitration
until May 27, 2013. In the course of the hearing, the Union and the Employer exchanged
certain documents from the family law case including the trial judges reasons
from June 2011. On May 30, 2013, the parties agreed to adjourn the hearing so
that the Employer could further investigate E.H.s conduct.

[11]

Carol Graham, an employee of the PSA, was tasked with the Employers additional
investigation. On June 5, 2013, she interviewed Mr. Kumar. During the
interview, she requested that Mr. Kumar provide her with documents from
the family law file. In response to this request, Mr. Kumar provided to Ms. Graham
a copy of the transcript of E.H.s testimony at the June 2011 trial.

[12]

On June 17, 2013, Ms. Graham attended the New Westminster Supreme
Court Registry with Mr. Kumar to review the contents of the family law
file. With Mr. Kumars consent, she obtained copies of some documents from
that file.

[13]

A month or so earlier, on May 10, 2013, Mr. Kumar had filed an
application seeking to vary the orders made by the trial judge after the June
2011 trial. The appellant filed a responding application seeking to confirm her
custody rights. The hearing of these applications was set for November 12,
2013.

[14]

Mr. Kumar did not attend the hearing on November 12, 2013. At this
hearing, counsel for the appellant raised the question of privacy. The
following exchange took place between counsel and the trial judge:

MR. BOYD:     Well, in this case, My Lord, one of
the
things I wanted to speak to is the issue of
privacy.  And a problem thats cropped up is that
the materials that are filed by Ms. Chellappa in
court are then broadcast by Mr. Kumar.  And
despite our requests that he not do that, thats
continued to be the case.

I
looked to see if theres some relief that
we can obtain, and I [
sic
] closest I get really is in
terms of the
Rules
.  You have the protection, for
example, under the financial disclosure rule.  The
next one is one that appears I believe under the
chambers applications where the court can make a
rule
−
I think its
under Rule 10-3(5)
−
and
thats really just in terms of declaring the
proceedings to be private.  And what Im looking
for really is some mechanism by which the court
process can be private and my clients materials
are not simply broadcast to various people in the
community.  So
−−

THE
COURT:  10-3(5)?

MR. BOYD: 
So thats the hearing of application in
public.  So in case of emergency −−

THE
COURT:  Yeah, Im on a different −− oh, Im sorry,
Im in the civil rules, of course.  Let me just
find the family rules.  What page are you at?

MR. BOYD: 
Im looking at 1240 and the −−

THE
COURT:  Thank you.  Well, Im not sure that that
gets you where you want to go.

MR. BOYD: 
Well, I guess what Im looking for really is
some means by which −−

THE
COURT:  All right.  Well, I am prepared, subject to
Mr. Kumar applying to set it aside, is, one, as I
say, his application is dismissed.  Hes not shown
up here today.  I am going to adjourn your
clients application.  It strikes me as moot in
the face of the dismissal of his because, as I
recall matters, she has custody, has she not?

MR. BOYD: 
She does.

THE
COURT:  So I dont −− Im still just going to
adjourn it over so she doesnt need to refile.
Im not sure that she needs an application, but in
any event, hers will be adjourned.


I am also going to make
an order that the
contents of the affidavits and material exchanged
within the summary trial process, assuming it
proceeds on, are not to be disclosed or divulged
to other persons until I hear from Mr. Kumar.  And
so that will be an interim order
.  I am seized of
it.  Obviously, its to be brought back in front
of me, but by Mr. Kumar would be the one.  And you
can put that in the form of an injunction if you
wish, that he is to be restrained, but it should
be a neutral restraint.  And by that I dont mean
to suggest − and I see Ms. (indiscernible) at the
back of the −− or, sorry, Ms. Chellappa, pardon
me, at the back of the room, to suggest shes
doing anything.
But I think that just keeping a
balance on this matter at this time, it should be
each of them are restrained from discussing the
matters in this litigation or arising from the
affidavits
.  Generally in the public, it involves
a child, and I think its important that the
privacy concerns be protected.  And then Ill hear
from each of the parties if I need to later on.

[Emphasis
added.]

[15]

The order entered after this hearing includes the following:

THIS COURT ORDERS THAT



4.         There shall be a mutual conduct order pursuant to
sections 222 and 227 of the
Family Law Act
, [S.B.C.] 2011, chapter 25
so that each party is prohibited from broadcasting, distributing, delivering or
sharing any of the materials in these proceedings, and shall not broadcast,
distribute, deliver or share any of the materials in these proceedings, or any
material arising directly from these proceedings to any third-party.

(the November 12
Order).

[16]

As will become clear, the November 12 Order is the foundation for the order
that is the subject matter of this appeal.

[17]

In December 2013, the Employer terminated E.H.s employment in part
because of his involvement in the family law case (the Termination). The Union
grieved the Termination. The Union and the Employer agreed that the Suspension
and Termination grievances would be heard together and appointed John Hall as
arbitrator.

[18]

On June 10, 2014, in response to a request from the Union for disclosure
by the Employer, the PSA forwarded to the Union copies of the documents that it
had obtained through its search of the family law file in June 2013.

[19]

On or around September 23, 2014, the Union raised a preliminary objection
to the use of the family law documents in the arbitration. The Unions objection
was based on the November 12 Order. The Union argued that the order constituted
a judicial firewall which precluded the use of any evidence from the family
law case.

[20]

On November 14, 2014, Arbitrator Hall heard submissions in relation to
the Unions objection. He noted that the Employer had properly acquired the family
law documents in June 2013, in advance of the November 12 Order. He identified
the issues before him as whether the Employer could rely on these documents in
the arbitration, and if yes, whether the Union would be unable to make full
answer and defence in light of the November 12 Order that was by that time in
place.

[21]

Arbitrator Hall concluded that the trial judge was best positioned to
determine the scope of the November 12 Order. He therefore adjourned the
arbitration to allow the Employer and the Union to seek directions from the
trial judge.

[22]

On January 22, 2015, the Employer filed a notice of application for
directions in the family law case. In particular, the Employer sought a
direction that the November 12 Order did not apply to the family law documents that
it had obtained prior to November 12, 2013. Alternatively it sought to amend
the November 12 Order to permit it to adduce the documents as evidence in the
arbitration.

[23]

The appellant opposed the Employers application. She submitted that the
Employer and the Union were strangers to the family law case and had no
standing to seek directions concerning the November 12 Order.

[24]

The trial judge found otherwise. In reasons given on February 4, 2015, he
noted that the Employer had obtained copies of the family law documents prior
to the pronouncement of the November 12 Order and followed the proper procedure
in doing so. In his view, the November 12 Order only affected the conduct of
the parties to the family law case, not third parties. He also found that the
November 12 Order did not preclude the use of materials disseminated prior to
its pronouncement. He held that, given that the Employer had acted on materials
in its possession and the materials formed part of the consideration for the Employers
action, it would be inappropriate to now restrict its use of the materials.

[25]

The trial judge agreed that the Union required its own independent
access to the family law file so as to muster its defence. He noted that, had
he known of the dispute between E.H. and his employer when the request for the
November 12 Order was made, a different result may have ensued. He initiated a
process to allow the Union access to the family law file.

[26]

The order arising from the proceeding reads as follows:

THIS COURT DIRECTS that:

1.

The
November 12, 2013, order issued by [the trial judge] pursuant to sections 222
and 227 of the
Family Law Act
, SBC 2011, c. 25 does not apply to
materials in Family Court file No. E028935 obtained by the PSA prior to
November 12, 2013.

THIS COURT ORDERS that:

2.

Counsel
for the BCGEU shall have access to and may make copies of the materials in
Family Court file No. E028935;

3.

Prior to
making use of any of the materials obtained from Family Court file No. E028935
in the labour arbitration between the BCGEU and the PSA concerning the
grievances filed on behalf of E.H., counsel for the BCGEU must:

a.

serve the
material on the Claimant and Respondent in this matter, and on the PSA, by way
of application; and

b.

set down an
application before [the trial judge] to determine which, if any, of the
materials may be adduced in the labour arbitration.

(the February 4 Order).

THE APPEAL

[27]

The appellant now appeals the February 4 Order. She seeks an order that
any information received by third parties from Mr. Kumar be subject to an
implied undertaking of non-disclosure. She also seeks an order prohibiting the
parties to the family law case from disclosing any information from that
proceeding to non-parties.

[28]

The appellant bases her appeal on procedural and substantive grounds.
She submits that the trial judge ignored the
Supreme Court Family Rules
(the

Rules
) and the implied undertaking rule in allowing non-parties access
to the family law file. She submits that, as a non-party, the Employer should not
have been given standing to seek directions. Underlying all her submissions is
the proposition that allowing non-parties to access her family law file is a
violation of her privacy rights.

DISCUSSION

[29]

Before turning to the issues raised on the appeal, I wish to comment
briefly on the November 12 Order. While that order is not directly challenged
on this appeal, it was made in a most irregular manner without any apparent
regard to the rules that govern applications to court. There was no underlying
application. It was made without notice to Mr. Kumar. There was no affidavit
evidence to support it. It was based entirely on counsels brief comments which
are set out in the reasons. Such practices should not be encouraged.

[30]

The November 12 Order is a complete gag on either party discussing the
case with anyone. I have considerable doubt as to whether the trial judge had
jurisdiction to make an order which so broadly restricts a partys freedom of
expression. If such jurisdiction does exist, it should only be invoked in the
clearest of cases on a full evidentiary record with notice to all impacted
parties.

[31]

The November 12 Order, as entered, is much broader in scope than what
was discussed at the hearing. At the hearing, there was no discussion of
sections 222 and 227 of the
Family Law Act
, S.B.C. 2011, c. 25. Further
the order was intended to be interim in nature and should have specifically set
out Mr. Kumars right to set it aside.

[32]

Turning to the merits of the appeal, I deal first with the appellants procedural
objections. The appellant submits that the Employer and the Union are
non-parties to the family law case and should not have been granted standing to
seek directions concerning the November 12 Order. That objection is without
merit.

[33]

Pursuant to R. 10-6(6) of the
Rules
, an application must be
served on every person who may be affected by the order sought. Rule 10-9(6)
allows the court to make an order without notice in case of urgency. Pursuant
to Rule 10-9(8), a person affected by an order made without notice may apply
to the court to change or set aside the order. Rule 10-9(8) provides recourse
to persons affected by an order regardless of whether they are parties in the
underlying proceeding.

[34]

In the circumstances of this case, the Employer and the Union were both persons
possibly affected by the November 12 Order. As of November 12, 2013, they had
in their possession documents from the family law file. Given Arbitrator Halls
direction, the Employer had to bring the application for directions in order to
determine if the documents could be used in the arbitration. The trial judge did
not err in giving the Employer and the Union standing to speak to an order that
affected them.

[35]

The appellants reliance on the implied undertaking of confidentiality rule
is also misplaced. In
Juman v. Doucette
, 2008 SCC 8, the Supreme Court
of Canada summarized the principles governing the implied undertaking rule. The
rule holds that evidence compelled during pre-trial discovery from a party to
civil litigation can be used by the parties only for the purpose of the
litigation in which it was obtained. The foundation of the rule is the
statutory compulsion to participate fully in pre-trial discovery. The rule is designed
to encourage open and generous discovery by assuring parties being discovered
of confidentiality. The rule recognizes that the public interest in getting at
the truth in a civil action outweighs the examinees privacy interest, but that
the latter is nevertheless entitled to a measure of protection. The implied undertaking
rule is not absolute. A party bound by the undertaking may apply to the court
for leave to use the information or documents otherwise than in the action. Further,
the implied undertaking of confidentiality is extinguished when the evidence is
used in open court.

[36]

The documents in issue in this proceeding are not covered by the implied
undertaking rule. They were not created in the course of pre-trial discovery. The
documents are court orders, reasons for judgment, affidavits, and transcripts
of court proceedings. The implied undertaking rule does not apply to such
documents.

[37]

Setting aside these procedural objections, the substance of the
appellants complaint concerns her privacy rights in respect of the family law
file.

[38]

The
Rules
contain some limitations on access to family law files.

[39]

While Rule 22-2(1) allows any person, unless otherwise provided by an
enactment, on payment of the proper fees, to obtain from the registry a copy of
a document on file in a family law case, Rule 22-8(1)(a), (5) and (6) limits
access as follows:

Search of files

(1)  Unless the court otherwise orders,

(a) no person, other than the
following, may search a registry file in respect of a family law case:


(i)

a
lawyer, whether or not a lawyer of a party;


(ii)

a
party;


(iii)

a person authorized in writing by a party;


(iv)

a
person authorized in writing by a partys lawyer, and



Search of exhibits

(5)  The exhibits produced at the trial or hearing of a
proceeding referred to in subrule (1) must be sealed by the registrar in a
secure manner and, unless the court otherwise orders, no person other than a
partys lawyer, a party or a person authorized by a party or by a partys
lawyer may search the exhibits.

Search of agreements

(6)  Unless the court otherwise
orders, no person other than a party, a partys lawyer, a person authorized in
writing by a party or a person authorized in writing by a partys lawyer may
search a separation agreement filed under section 122 of the
Family
Relations Act
.

[40]

A partys right to keep information in a family law case private has
been the subject of prior judicial scrutiny. While a litigants right of
privacy is an important right, it is subject to, and does not take precedence over,
the right of the public to an open court process:
Edmonton Journal v.
Alberta (Attorney General)
, [1989] 2 S.C.R. 1326.

[41]

The issue in
Edmonton Journal
was the constitutional validity of Alberta
legislation which limited the publication of information concerning matrimonial
disputes. The Court held that the legislative provisions violated the right to freedom
of expression guaranteed under the
Canadian Charter of Rights and Freedoms
(the


Charter
)

and could not be justified under s. 1 of the
Charter
.
The majority recognized that a court can always use its supervisory power over
its own record to grant restraining orders in appropriate cases:
Edmonton
Journal
at 1346-1347.

[42]

In
Leung v. Leung
(1993), 77 B.C.L.R. (2d) 305 (S.C.), Chief
Justice Esson suggested that a party in a matrimonial action was not entitled,
as of right, to injunctive relief restraining the possession or use of
documents from the court file even though the documents were obtained in
contravention of the
Rules.

[43]

In
K.V.P. v. T.E.
(1998), 56 B.C.L.R. (3d) 344 (S.C.), a party
and several non-party media outlets applied to have a family law file unsealed.
After reviewing the legislation and the authorities, Madam Justice Loo
concluded:

[20]      It therefore appears
that notwithstanding Rule 60(22) [now R. 22-8(1)], parties do not have a right
to insist that the proceedings remain private, or that information contained in
the files not be disclosed to persons other than the parties, or any solicitor
in all circumstances.
If a third party seeks access to a matrimonial file, a
general desire to keep matters private or to avoid publicity is not sufficient
to deny access. It appears that a significant risk that significant harm will
otherwise occur must be demonstrated in order to overcome the openness
principle and the majority decision in
Edmonton Journal
.
[Emphasis
added.]

[44]

In
Michie v. Michie
, 2010 BCCA 232, this Court was asked to
examine the confidentiality of financial information disclosed in matrimonial
proceedings. Referring to the decisions in
Edmonton Journal
,
Leung
and
K.V.P.
, the Court concluded that there was no general right to
privacy in such proceedings. The Court held that the
Rules
identify with
some specificity the material to which confidentiality applies and that the
Rules
are an exception to the general open court policy of the law. The Court
concluded:

[31]      In matrimonial proceedings,
as in other court proceedings, public access is the norm.  Recognizing the
sensitivities of matrimonial proceedings, the
Rules of Court
provide
some limitations on access.

[45]

Those comments are apposite. The appellant enjoys no overriding right of
privacy in regard to material filed in her family law case. While a Supreme Court
judge may limit access to a family law file, such an order is contrary to the
open court principle and is an exception to the general rule.

[46]

In this case, the Employer obtained documents from the family law file with
the consent of Mr. Kumar, who is a party to the family law case. In so doing,
the Employer obtained the family law documents in compliance with the
Rules.
Nothing in the
Rules
prohibited Mr. Kumar from giving documents from
the family law file to a third party. There is no legal basis to deny the
Employers use of these documents in the grievance proceedings. Further, the
documents are clearly relevant to the issues that are before the arbitrator in
that proceeding.

[47]

I would dismiss the appeal.

The
Honourable Mr. Justice Goepel

I AGREE:

The Honourable Madam Justice Kirkpatrick

I AGREE:

The Honourable Madam Justice Garson


