The Supreme Court has just reaffirmed the “functus officio” doctrine. It usually bars reopening a court decision about the merits, which is or was capable of appeal. Indeed, courts lack jurisdiction after their final decision is made. The doctrine serves economic, psychological, and appellate needs.
But the Supreme Court creates a sensible exception. Courts’ decisions which are not about the merits, and are about controlling the court’s record and access to it, are ancillary and independent. So even after a formal judgment is filed, a court may make, enforce, vary, or end an order barring access to court files or proceedings, or banning publication. Often such an order is sorely needed then.
Even a previous order about or restricting publicity, can be revisited in only two circumstances. First, where someone with proper standing did not get notice that that order was being sought or considered, and should have had a chance to be heard on the topic. That is natural justice. But the person with standing must apply promptly.
And second, where a material change of circumstances since the ban or sealing application, is shown. The change must be one likely to have produced a different order had it occurred or been known initially. This is not the time to discuss the order’s initial correctness.
Valid legislation or Rules of Court can vary these tests for reconsideration.
See Canadian Broadcasting Corporation v. R. (Man.) 2021 SCC 33.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
