CNA’s bid denied to privately argue issue in legal fees case

Rosie
Rosie Mullaley
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There may be a good reason why the College of the North Atlantic (CNA) doesn’t want to publicly divulge what it spends on external legal fees. But if it wants the court to know, the public must know, too, one of the province’s top judges has ruled.

In Newfoundland and Labrador Supreme Court Thursday, Chief Justice David Orsborn dismissed a CNA application, which sought to have a certain document entered into evidence in its bid to have particulars on its legal bills remain private.

CNA lawyers say the document contains “sensitive information” that would further explain why CNA should not have to disclose the particulars of  legal fee payments.

They’ve asked that the document be kept from the public — at least until the case is settled — and that arguments regarding its contents be made by lawyers in private, rather than in open court. Those present would then be subject to a gag order.

During a hearing Thursday, CNA lawyer Chris Peddigrew said if the information in the document became public, he and the college would be breaching court rules.

He wouldn’t say what the information in the document was or what the breach would be.

That wasn’t good enough for Orsborn, who said he couldn’t go on the “trust-me approach.”

He said with such little information to prove the basis of the argument the document was pertinent, he could not conclude that it should be kept from the public.

“I’m told nothing at all,” Orsborn said. “I’m unable to conclude there is a serious risk to the administration of justice.

“I’m not prepared to guess what the breach might be and I’m not prepared to go so far as to close court.”

The request to enter the document into evidence and to argue it in private was made following a June 5 hearing, during which Peddigrew and Andrew Fitzgerald, lawyer for information and privacy commissioner Ed Ring, presented their arguments on the legal fees issue.

At that time, Peddigrew had argued that legal fees information should be kept private because it would violate solicitor-client privilege if revealed. Only after the hearing ended did he mention the document. The late mention of it concerned the judge.

At Thursday’s hearing, Peddigrew said that if the document could not be presented to the court in private, it would not be presented at all. As a result, he said, the college would be unable to present its case in its entirety and it would prevent his client from having a fair trial.

“I’ll be unable to put my client’s best case forward,” said Peddigrew.

Fitzgerald argued if the college’s request is granted, it would infringe on the open-court principle and Charter of Rights’ freedom of expression.

He said Peddigrew did not present evidence to suggest there would be a serious risk with the release of the contents in the document.

“There should be evidentiary basis,” Fitzgerald said.

“What you have in front of you is inadequate. … We need more than a suggestion that it may be in violation of a rule of court. We don’t even know what it is. … We need more than just an assertion from my learned friend.”

Fitzgerald pointed out that because the public has a vested interest in what goes on at court, information should not be secret. While he realizes there are cases in which information should be heard in private, he said this wasn’t one of them.

“This is not a case in which a person’s life, liberty or security was at risk,” he said.

With that issue settled, Orsborn can now focus on rendering his decision regarding the privacy of the college’s legal fees.

 He gave no indication when that would be.

Organizations: CNA, Newfoundland and Labrador Supreme Court, Peddigrew and Andrew Fitzgerald

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