Civil Procedure Rules of Nova Scotia  
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Part 17 - Administration

Rule 85 - Access to Court Records

Scope of Rule 85
85.01 (1) This Rule recognizes the need for the court’s records to be open to the public, and provides exceptionally for a record to be kept confidential.
  (2) The provisions for confidentiality in Part 13 - Family Proceedings, which are to protect a child, prevail over this Rule.
  (3) Court records must be made accessible to the public, directly and through the media, in accordance with this Rule.
  (4) A court record may be made the subject of an order for confidentiality, in accordance with this Rule.
       
Access to court record of proceeding
85.02 (1) A person who wishes to find a document, recording, or exhibit in a proceeding may require the prothonotary to provide information about the proceeding from the civil proceedings index or give the person access to the index so the person can find the information.
  (2) A person who provides all of the following may require that the prothonotary permit the person to have access to court records of, and evidence in, a proceeding:
   
(a)
the registry number of the proceeding or sufficient information so the prothonotary can find the document, exhibit, or recording;
   
(b)
a fee or charge provided for by law;
   
(c)
an undertaking under Rule 85.03, if a copy of an audio-recording is required and a judge does not except the person from the requirement for an undertaking.
  (3) The access a person may require under Rule 85.02(2) is satisfied by provision of whichever of the following the person requests:
   
(a)
inspection of a document or exhibit, or photographing an exhibit, under conditions that protect the integrity of the evidence;
   
(b)
delivery of a copy of a document, an audio-recording of a proceeding, or an exhibit capable of being copied by the prothonotary.
  (4) The prothonotary must refuse to comply with a requirement to provide access to court records or evidence that results in a breach of a confidentiality order or in a serious risk to the integrity of a record or evidence.
  (5) The prothonotary must defer complying with a requirement for access to court records or evidence when a judge or court reporter has custody of a required document or exhibit temporarily for use in connection with the proceeding.
  (6) A request for access to court records or evidence temporarily in the control of a judge or a court reporter may be made to the judge in accordance with Rule 87 - Communicating With a Judge.
       
Broadcasting audio recording
85.03 (1) The prothonotary must require a person who demands a recording to undertake not to broadcast or distribute all or part of the recording, unless a judge orders otherwise.
  (2) A judge who hears a motion to except a person from giving an undertaking not to broadcast or distribute a recording must consider all relevant factors, including whether the open court principle is fully served by the person’s ability to listen to and quote from the recording and, if the open court principle is not fully served by the ability to quote from the record, each of the following:
   
(a)
whether the broadcast or distribution may affect the conduct of, or the determination of an issue in, an ongoing proceeding;
   
(b)
the affect of the broadcast or distribution on the person whose voice is sought to be broadcast, or a recording of whose voice is sought to be distributed;
   
(c)
if the recording sought by the person who makes the motion includes testimony, it is presumed unless the contrary is established that frequent broadcast of testimony may have an adverse affect on the willingness of a truthful witness to come forward and on the way in which a person testifies.
       
Order for confidentiality
85.04 (1) A judge may order that a court record be kept confidential only if the judge is satisfied that it is in accordance with law to do so, including the freedom of the press and other media under section 2 of the Canadian Charter of Rights and Freedoms and the open courts principle.
  (2) An order that provides for any of the following is an example of an order for confidentiality:
   
(a)
sealing a court document or an exhibit in a proceeding;
   
(b)
requiring the prothonotary to block access to a recording of all or part of a proceeding;
   
(c)
banning publication of part or all of a proceeding;
   
(d)
permitting a party, or a person who is referred to in a court document but is not a party, to be identified by a pseudonym, including in a heading.
  (3) A judge who is satisfied that it is in accordance with law to make an order excluding the public from a courtroom, under Section 37 of the Judicature Act, may make an order for confidentiality to aid the purpose of the exclusion.
       
Notice of motion for confidentiality order
85.05 (1) A party who makes a motion for an order for confidentiality, or to exclude the public from a courtroom, must give reasonable notice to representatives of media, unless a judge orders otherwise.
  (2) The notice to media representatives may be given by using the service provided by all courts in Nova Scotia for giving notice to the media through the internet.
  (3) A judge who excepts a party from having to give notice to media representatives must file a report of the decision with the prothonotary at Halifax.
  (4) The prothonotary at Halifax must do both of the following with judges’ reports of a decision to except notice to media representatives:
   
(a)
make the reports available for inspection and provide a copy on demand, unless the report itself is sealed;
   
(b)
respond to a person who asks about the number of reports that are sealed in a calendar year.
       
Privileged documents
85.06 (1) Nothing in these Rules diminishes the power of a judge who must determine a claim that a document is privileged, or otherwise subject to a confidentiality protected by law, to keep the document confidential until the determination is made.
  (2) A judge who must determine a claim that a document is privileged, or otherwise subject to a confidentiality protected by law, may do any of the following without the document being marked as an exhibit, made part of the public court record, disclosed to the party who contests the claim, or made available to the public:
   
(a)
personally take control of the document;
   
(b)
give directions to the prothonotary or any other member of court staff for storing the document, keeping it separate from court records, and doing with it only as the judge further directs;
   
(c)
read, view, or listen to the document for the purpose of making the determination.
  (3) A document taken control of and kept confidential by a judge is not part of the public court record and need not be made the subject of a confidentiality order.
  (4) A judge who takes control of a document and determines that it or part of it is not privileged, and that it is not otherwise subject to a confidentiality protected by law, must do both of the following:
   
(a)
maintain control of the document long enough for the party who claims privilege to make a motion for a confidentiality order pending appeal;
   
(b)
place the document or the part on the court record, unless a confidentiality order is in effect pending appeal.
  (5) A judge who takes control of a document and determines that it or part of it is privileged must make a sealed record for review by the Court of Appeal.
  (6) The sealed record must include everything determined to be privileged, and everything else delivered to the judge for the determination must be placed on the record.
  (7) The party who claims privilege may make a motion for the sealed record to be delivered to the party in the time referred to in Rule 84.04, of Rule 84 - Court Records.
       
Freedom of Information and Protection of Privacy Act
85.07 (1) For the purpose of Section 49 of the Judicature Act, an appeal under the Freedom of Information and Protection of Privacy Act may be started by filing a notice of appeal that conforms with Rule 7 - Judicial Review and Appeal and, as nearly as possible, the regulations under the Freedom of Information and Protection of Privacy Act.
  (2) A judge who gives directions, under Rule 7 - Judicial Review and Appeal, for an appeal under the Freedom of Information and Protection of Privacy Act may include directions about delivery to the judge assigned to hear the appeal of a sealed package containing the documents claimed to be subject to a confidentiality protected by the Act.
  (3) A prothonotary who, before a motion for directions is heard, receives documents claimed to be subject to a confidentiality protected by the Freedom of Information and Protection of Privacy Act must seal the documents and keep them confidential until a judge gives directions for their delivery.
       
Access to court records in general
85.08 (1) A judge, a judge’s assistant, the prothonotary, a deputy prothonotary, and a member of court staff authorized in writing by the prothonotary may have direct access to all court documents, unless the access is prevented by an order for confidentiality.
  (2) No other person may have direct access to court records, unless the access is under an agreement approved by the court.
  (3) An agreement permitting direct access for an analysis of court records, or of the business of the court, must contain terms about each of the following:
   
(a)
the purpose of the analysis;
   
(b)
diligence in making an accurate analysis;
   
(c)
the intended distribution of the analysis or of a report on it;
   
(d)
provision of the analysis or a report on the analysis to the Chief Justice before other persons receive it;
   
(e)
the date direct access terminates.
       
Personal information
85.09 (1) The prothonotary may keep separate from the civil proceedings list a record of personal information given to the prothonotary for making contact with counsel, a party, or a person who is not a party.
  (2) The prothonotary may give the personal information to a party who wishes to contact the counsel, party, or other person, unless the prothonotary is satisfied that providing the information may compromise the security of a person.
  (3) The prothonotary is not required to give the personal information or access to the record of it to a person who is not a party or court staff.
       

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