Oct 15, 2020

Can a Practitioner’s Privacy be Protected by the Terms of an Adjournment?

Colpitts v Nova Scotia Barristers’ Society, 2019 NSCA 45 (CanLII)

Mr. Colpitts, a lawyer, was convicted of a serious criminal offence. He appealed the conviction. In the meantime a resulting interim discipline process was adjourned, pending the outcome of the appeal, on the basis that he undertook not to practise the profession. The agreement was confidential. After further investigation the regulator referred Mr. Colpitts to a hearing under another provision. Mr. Colpitts sought judicial review of that decision arguing that the terms of the earlier adjournment precluded any further discipline action until the criminal appeal was heard. Mr. Colpitts asked the court to protect his privacy in the judicial review proceedings on the basis of the assurance of confidentiality he had received in the earlier adjournment matter.

The Nova Scotia Court of Appeal upheld the lower court ruling that regardless of how one interpreted the terms of his adjournment before the Law Society, he had not established the need to have the court proceedings held anonymously: Colpitts v Nova Scotia Barristers’ Society, 2019 NSCA 45, <http://canlii.ca/t/j0pmz>. The Court said:

Courts operate in the public domain, not behind closed doors, unless it is necessary to prevent a serious risk to an important public interest and the salutary effects outweigh the deleterious effects of the requested confidentiality order.

The privacy interests of a practitioner of a profession would not normally meet these criteria.

This case also illustrates how the wording of agreements with practitioners should contemplate other proceedings and not just the one proceeding currently in mind.