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Page 6 SePTeMBeR 21, 2015 • LaW TIMeS www.lawtimesnews.com COMMENT Resolve publication ban dilemma I t seems logical that if the law is going to require litigants to do something, there should be a process in place setting out how they should do it. But when it comes to notices to the media of applications for publication bans, judges o en require them, but Ontario's Superior Court has no standard rules for providing them. It's a dilemma outlined by Justice Ian Nordheimer in last week's Divisional Court ruling in A.M. v. Toronto Police Service. Nordheimer was providing his reasons for his decision dealing with A.M.'s motion seeking an order allowing him to pursue his judicial review application using only his initials. On that issue, Nordheimer required notice to the media of the motion and gave directions as to which media outlets to provide it to. A er considering various cases dealing with publication bans and media access in the past, Nordheimer concluded that whenever a party is seeking to restrict access to a court proceeding, the media should have notice of the request. at includes, he found, motions seeking to use a pseudonym or initials in place of the party's name. But the dilemma, he noted, is that the court hasn't set out a general process for giving notice, particularly when it comes to fi guring out which media outlets the party should provide it to. "I contrast this with, for example, the situation in the Province of Nova Scotia where the Courts of Nova Scotia maintain a free e-mail subscription service to advise the media of applications made to the courts for Ombudsman ruffled feathers but did his job well Y ou'd have a hard time finding anyone around Queen's Park who doesn't understand why ombudsman André Marin isn't getting a third term. Arguably, he's the worst civil servant in memory from the government's perspec- tive. He's aggressive, isn't shy about shout- ing out his achievements, and doesn't tend to back down even when it's politically prudent to do so. He rocks the boat too much and is politically incorrect. In short, he was the perfect ombudsman. Still, the Liberal government refused to grant his third term as it teamed up with the Progressive Conservatives to block his appointment at the all-party committee struck to review candidates for the job. It's no surprise. Marin has been on bor- rowed time since May when his term of- ficially expired with an extension through mid-September to give the committee time to review his case for a third appoint- ment or select from other candidates. Marin has been controversial from the start, but you have to think it comes with the territory. He's a former assistant Crown attorney and part-time Ottawa law professor. As director of the Special Inves- tigations Unit in the 1990s, he came un- der criticism for rarely laying charges and obtaining convictions, (although, to be fair, police aggressively fought the imposition of his agency). In 1998, he became Canada's first military ombudsman and again came under fire for his management style. He's no shrinking violet, but in watching him over the last 10 years, what does come through is his passion for the job. He was never going to be a meek and mild civil servant working away in the shadows. Nevertheless, the govern- ment put Marin in the awkward posi- tion of having to apply for his own job and while he made it past two inter- views and his references were laudatory, the Liberals were clearly out to get rid of him. Ironically, since the commit- tee can't agree on any of the candidates other than Marin, the process will start again with deputy ombudsman Barbara Finlay taking over on an interim basis. Given his history, it was no surprise when Marin called a press conference to make his public farewell. He's never been shy about tweeting or promoting his opinions. "I had every reason to believe I would be selected for the job," he said. "Until last week. The process was as leaky as a sieve. It was tabled as arm's length to select the best person for the job but it now appears the process was shambolic. The integrity of the selection process was compromised by crass politics." In short, he said, they weren't seeking the best per- son for the job and, in fact, he was the target of a cam- paign to choose anyone but him. It's ironic, he said in his press conference, because he had assurances that everything was fine and, given an exhaustive reference check, it seemed logical an offer was coming. For his part, Marin said he had dis- charged his duties under the Ombudsman Act that required him to report annually and through special reports. The government introduced the act in 1975 and, aside from recent changes authorizing investigations in a few ad- ditional areas, hasn't updated it. One of the glaring gaps Marin has been push- ing to close is to win the right to probe the broader public sector more fully. As of Jan. 1, the ombudsman will also have the authority to deal with complaints in- volving universities. Ironically, since he won the right to in- vestigate issues at school boards as of Sept. 1, his office received 50 complaints even before classes had started. "Being an ombudsman is not an easy job," he said. "I'm not here to please the powers. It's not a popularity contest. If I was the government, maybe I wouldn't like me either. I don't expect to be invited to tea with the premier. I just expect them to be fair with the process and they haven't been. Under the Ombudsman Act, it is supposed to be politics free and impartial." He also hasn't helped his own case much. In May, when he reapplied for his job, he took to Twitter and then retweet- ed ensuing tweets that called Ontario a "banana republic" while others suggest- ed the government was as corrupt as the Fédération Internationale de Football Association. Granted, it's not the kind of strategy most people would undertake in a job ap- plication, but this is no ordinary job. We haven't heard the last from Marin, and that's a good thing. LT Ian Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ian- harvey@rogers.com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. 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If other provinces can fi gure it out, surely Ontario's courts can do it, too. As Nordheimer noted, the lack of clarity means parties either have to fi gure out on their own whom to notify or go through the added expense of seeking directions from the court. e issue isn't new, of course, as there have been calls on Ontario to move on this issue for some time. It's time for it to do so. LT Queen's Park Ian Harvey

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