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Civil Litigation - Document Access. Pachai v. MTCC No. 850
In Pachai v. MTCC No. 850 (Div Court, 2024) the Divisional Court cites a central CJA 'open court' provision:[12] Section 137 of the Courts of Justice Act, RSO 1990, c C.43, provides that, “a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise”. It is apparent that pleadings in an action are public documents and available for inspection upon request. . S.E.C. v. M.P.
In S.E.C. v. M.P. (Ont CA, 2023) the Court of Appeal considered the SOR for appeals of sealing orders:[29] ... The determination of whether a sealing order is warranted under the test in Sherman is one of mixed fact and law. ... . S.E.C. v. M.P.
In S.E.C. v. M.P. (Ont CA, 2023) the Court of Appeal considered sealing orders [under R137(2)] and the related 'open court' doctrine - here where the issue was the balancing of rights between people under disability [their litigation settlements which require judge's approval: R7.08 and CJA 137(2)] and the public interest in access to court documents:[3] Parties may seek to seal documents filed, and thereby keep them from public disclosure, using s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), which provides that “[a] court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.” However, the CJA does not set out criteria to be met for a sealing or confidentiality order to be made. Instead, the relevant test was provided by the Supreme Court in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361.
[4] The appellants urge this court to expand the use of s. 137(2) to sealing orders in settlement motions under r. 7.08 on the basis that these motions are heard in-writing and therefore not subject to the open court principle, to fulfil the court’s parens patriae jurisdiction, in protection of solicitor-client privilege, and in the alternative, as a result of the application of the test in Sherman.
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(1) Settlement approval motions in writing are subject to the open court principle
[32] The appellants argue that the motion judges erred in law when they failed to consider and apply r. 37.11(1)(a) [SS: 'Hearing in Absence of Public'] to the request to seal the motion records. The appellants highlight that s. 135(2) of the CJA provides: “[s]ubject to section (2) and the rules of the court, all court hearings shall be open to the public...”. However, r. 37.11(1)(a) states that: “A motion may be heard in the absence of the public where … the motion is to be heard and determined without oral argument”. The result, it is argued, is that r. 7.08 orders, because they are heard in writing, are heard in the absence of the public and therefore are not subject to the open court principle.
[33] I reject this submission. There is no basis for holding that the open court principle does not apply to written proceedings generally, or r. 7.08 motions in particular. Courts have not treated s. 37.11(1)(a) in this fashion and there is no indication that the legislature intended such a sweeping abrogation of the open court principle, rather than a procedural effort at improving court efficiency in certain motions. Indeed, as the intervener CMLA underscored, there may actually be a greater rationale for protecting the open court principle in written motions, which would otherwise be secret and not available for public accountability.
[34] Moreover, the appellants’ interpretation goes against the expansive jurisprudence on the open court principle. As Kasirer J. stated in Sherman, “[c]ourt proceedings are presumptively open to the public” and “the open court principle is engaged by all judicial proceedings, whatever their nature” (emphasis added.): at paras. 37, 44. As such, s. 37.11(1)(a) does not provide a way of avoiding the open court principle or a freestanding justification for a sealing order in the context of these appeals or r. 7.08 motions more broadly.
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[52] The Sherman test was not developed out of whole cloth by the Supreme Court. Rather, it reflected an incremental step in the Court’s jurisprudence on the open court principle and its limits.
[53] In Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 SCR 835; and R. v. Mentuck, 2001 SCC 76, [2001] 3 SCR 442, the Supreme Court developed a balancing test for when ordering a publication ban of a court decision would be justified. The Court stated that a publication ban should be ordered only when:(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice: Mentuck, at para. 32. [54] In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 SCR 522, the Supreme Court reformulated the test for a confidentiality order holding that it should be granted where, at para. 53:(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. [55] The test in Sherman further refined the Sierra Club approach as to when the open court principle can be curtailed, particularly in the context of civil proceedings. Under this test, the party seeking a sealing order or publication ban must show that, as outlined at para. 38:(a) Court openness poses a serious risk to an important public interest;
(b) The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(c) As a matter of proportionality, the benefits of the order outweighs its negative effects. The first prong of this test requires an applicant to show that the open court principle poses a serious risk to an important public interest in the context of the case. [56] In my view, the appeals before the court turn primarily on the first prong of the Sherman test.
[57] In Sherman, the Supreme Court explained the two-step analysis to determine if the open court principle can be said to pose a serious risk to an important public interest, at para. 42:While there is no closed list of important public interests for the purposes of this test, I share Iacobucci J.’s sense, explained in Sierra Club, that courts must be “cautious” and “alive to the fundamental importance of the open court rule” even at the earliest stage when they are identifying important public interests (para. 56). Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute (para. 55). By contrast, whether that interest is at “serious risk” is a fact-based finding that, for the judge considering the appropriateness of an order, is necessarily made in context. In this sense, the identification of, on the one hand, an important interest and, on the other, the seriousness of the risk to that interest are, theoretically at least, separate and qualitatively distinct operations. An order may therefore be refused simply because a valid important public interest is not at serious risk on the facts of a given case or, conversely, that the identified interests, regardless of whether they are at serious risk, do not have the requisite important public character as a matter of general principle. [58] As the Supreme Court emphasized in Sherman, whether the interest is at “serious risk” is a fact-specific inquiry grounded in the context of the case: at para. 52. A serious risk can be established through direct evidence or through logical inferences, but these inferences must be “grounded in objective circumstantial facts that reasonably allow the finding to be made”: Sherman, at para. 97. Both the probability of the harm and its gravity are relevant to the assessment: at para. 98.
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[104] ... in my view, the first prong of the Sherman test that the open court principle be shown to pose a serious risk to a matter of important public interest is not met.
[105] As I conclude the first prong of the Sherman test is not met in these appeals, I do not need to turn to the second step in the Sherman analysis, which considers whether a sealing order is necessary, and if so, the third step, which considers whether the benefits of a sealing order outweigh its negative effects.
[106] If it were necessary to conduct the second step of the Sherman analysis, I would conclude that a sealing order is not necessary. In P1 v. XYZ School, 2022 ONCA 571, at para. 46, this court confirmed that the focus of the analysis at this stage is on “minimal impairment” of the open court principle: the court must consider whether reasonably alternative measures are available and restrict the order as far as possible without sacrificing the prevention of the risk. The less restrictive options of anonymization (adopted in the Dr. C. motion) or a publication ban can deal with the protection of the important public interest at stake in these appeals, if such an interest were found to be at serious risk through the operation of the open court principle.
[107] Finally, if it were necessary to conduct the third step of the Sherman analysis, I would place the value of public accountability in the court discharging its parens patriae jurisdiction through the operation of r. 7.08 motions as a more fundamental value in the justice system than the protection of the privacy of litigants or their lawyers. Therefore, in my view, the benefits of a sealing order would be outweighed by the negative outcomes. . RPR Environmental Inc. v. Saxe Law Office
In RPR Environmental Inc. v. Saxe Law Office (Div Court, 2022) the Divisional Court considers the open court principle, here in relation to an appeal of a sealing order motion:[8] The court has jurisdiction – both inherent and statutory – to seal portions of a court file: Fairview Donut Inc. v. The TDL Group Corp., 2010 ONSC 789 (SCJ); Courts of Justice Act, RSO 1990, c. J.1, s.137(2). While it is true that a sealing order may be made after a document is filed with the court, generally such orders are sought and made before a document is disclosed publicly by being placed in a public court file: Beiko v. Stone, 2019 ONSC 1703 (SCJ).
[9] Solicitor/client privilege is not the only basis on which a party may seek a sealing order. Such an order may be made (among other situations) to protect certain kinds of confidential information, privacy interests, and to protect vulnerable persons (be they parties, witnesses, or other persons involved in a court matter). “Disclosure” will not always vitiate the abses for these claims for sealing orders; that will depend on the circumstances. Solicitor/client privilege, however, differs from these other categories of potentially protected documents and information: the protection afforded to it may be lost, by operation of law, where the privilege holder waives the privilege.[1] . AA v. BB
In AA v. BB (Ont CA, 2021) the Court of Appeal upheld a trial judge's efforts to protect the identity of children involved in a tort action:[49] The trial judge invoked s. 87(8) of the CYFSA to order that the letters AA, BB, and CC be used instead of the parties’ initials in all judgments and endorsements related to the matter.
[50] Section 87 of the CYFSA applies to hearings held under Part V of the Act dealing with child protection. Section 87(8) states that “[n]o person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.”
[51] AA submits that his civil action against BB and CC was not a hearing or proceeding under Part V of the CFYSA, so the trial judge erred by relying on s. 87(8) to grant the Naming Order.
[52] Whether or not the trial judge possessed jurisdiction under CFYSA s. 87(8) to issue the Naming Order, he certainly possessed the jurisdiction through a combination of his inherent jurisdiction and s. 137(2) of the CJA[3]: see Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332. Although the trial judge did not refer to the principles set out in Sierra Club, at para. 53, and Vancouver Sun, at paras. 30-31, his Naming Reasons disclose that, in essence, he considered: (a) whether some restriction on the naming of the parties was necessary to prevent a serious risk to the welfare of AA and CC’s children; and (b) whether the salutary effects of such a restriction would outweigh its deleterious effects. That analysis has been applied by Ontario courts to initialize or otherwise protect the identities of parties and their children in civil matrimonial litigation: L.C.F. v. G.F., 2016 ONSC 6732, 86 R.F.L. (7th) 338, at paras. 17-18; S.M. v. C.T., 2020 ONSC 4819, 46 R.F.L. (8th) 109, at paras. 27-28; G.S. and K.S. v. Metroland Media Group et al., 2020 ONSC 5227, 46 R.F.L. (8th) 357, at paras. 43-44. . Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario
In Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario (Div Ct, 2021) the Divisional Court considered a motion by a party to anonymize affidavits:[13] Given that Work Safe seeks to restrict public access to the identity of strippers who will be swearing affidavits on the application, the test to be applied is the test articulated by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76. The Dagenais/Mentuck test requires Work Safe, as the party seeking the order, to establish that:a. Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
b. The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the respondent to a fair and public hearing, and the efficacy of the administration of justice. ....
Issue 1: Is the order necessary to prevent a serious risk to the administration of justice?
[16] In H. (M.E.) v. Williams, 2012 ONCA 35, the Court of Appeal set out some of the principles that apply to deciding whether the necessity branch of the Dagenais/Mentuck test is met. At para. 33, the Court held that, in considering the necessity branch of the test, the court is to keep the “high constitutional stakes” of freedom or the press “at the forefront of the analysis”:The constitutional right to freedom of expression protects the media's access to and ability to report on court proceedings. The exercise of this fundamental freedom in the context of media coverage of court proceedings is essential to the promotion of the open court principle, a central feature of not only Canadian justice, but Canadian democracy. [17] The necessity branch of the test only focuses on the existence of a serious risk to the public interest. At this stage, the potential benefits of the order are irrelevant: Williams, at para. 31.
[18] In Elbakhiet v. Palmer, 2019 ONCA 333, at para. 27, the Court of Appeal set out the three issues the court is to consider in determining whether the necessity branch of the test has been met:To meet the necessity part of the test, the requesting party must show: an important interest that can be expressed as a public interest; a real and substantial risk that is well-grounded in the evidence and that poses a serious threat to the interest in question; and no other reasonable alternative to the order sought. Public interest at stake
[19] I accept that there is a public interest at stake here.
[20] In Williams, at para. 27, the Court held that “an individual's right to seek and obtain appropriate relief in a court proceeding is a matter of significant public interest impacting on the proper administration of justice”. In that case, the Court held that the public interest was engaged in divorce proceedings because the case involved access to the court on matters “integral to personal autonomy”. In this case, without assessing the strength of Work Safe’s Charter challenge, what is at stake is access to the court on matters involving the livelihood and safety of strippers. Employment and the ability to work safely are matters integral to personal autonomy. Accordingly, I accept that Work Safe’s ability to bring this application forward on behalf of the strippers engages matters of public interest.
Real and substantial risk
[21] Even if there is a public interest, at stake, Work Safe must establish that there is a real and substantial risk that it cannot access the courts on behalf of the strippers absent an anonymization order. In Williams, at para. 28, the Court held that a party seeking an order of this nature does not have to establish that it would not go to court absent the order because access to the courts “at the cost of substantial debilitating emotional or physical harm … would be more illusory than real”. However, at para. 30, the Court emphasized that personal emotional distress and embarrassment are not sufficient; there must be a risk of serious physical or emotional harm.
[22] In Williams, at para. 34, the Court of Appeal also emphasized the heavy evidentiary burden faced by the party seeking an order restricting public access to the courts:[T]he centrality of freedom of expression and the open court principle to both Canadian democracy and individual freedoms in Canada demands that a party seeking to limit freedom of expression and the openness of the courts carry a significant legal and evidentiary burden. Evidence said to justify non-publication and sealing orders must be “convincing” and “subject to close scrutiny and meet rigorous standards”. [23] In A.B. v. Bragg Communications Inc., 2012 SCC 46, at paras. 16, the Supreme Court held that, even in the absence of direct evidence of harm, the court can find that there is a risk of harm “by applying reason and logic”.
[24] In this case, Ontario argues that Work Safe has not met its evidentiary burden of providing “convincing” evidence of a serious risk of harm. In particular, it argues that Work Safe has not provided direct evidence of the risks strippers would face if they use their names or evidence that Work Safe cannot advance the application by finding strippers willing to identify themselves in affidavits sworn in support of the application. In support of this position, Ontario relies on the Adult Entertainment Association decision referred to above.
[25] In Adult Entertainment Association, the applicants challenged a by-law that regulated “adult entertainment parlours” in the City of Ottawa. In support of the application, the applicants sought to include forty-five anonymized affidavits sworn by “female adult entertainment performers”. In support of the motion, the applicants put forward an affidavit sworn by one of the performers who referred to the potential stigma to the performers and their children if they had to identify themselves publicly. The Court dismissed the motion. The Court found that there was no evidence that none of the forty-five affiants would be willing to swear affidavits using their full names. The court also noted that many of the affiants did not appear to have families or connections to the Ottawa region.
[26] In my view, the Adult Entertainment Association case is distinguishable. The decision was based on the specific circumstances and evidence before the Court in that case. In addition, it was decided in 2005. At that time, the proposed affiants’ ties to Ottawa may have seemed relevant. However, in 2021, as argued by Work Safe, the internet greatly diminishes the relevance of geography in determining the risks of public identification. Once the strippers’ names are made public, as a matter of common sense and logic, that information is available to the world. . Elbakhiet v. Palmer
In Elbakhiet v. Palmer (Ont CA, 2019) the Court of Appeal considered the test for an order prohibiting the public dissemination of documents in litigation:[26] The principles to be applied on a motion prohibiting documents filed in court proceedings from public dissemination are set out at paras. 53-55 of Sierra Club, which adapts the Dagenais and Mentuk test to the confidentiality of documents context. To obtain a confidentiality order, the requesting party must satisfy a two-part test:i) the order must be necessary to prevent a serious risk to an important interest, including a commercial interest, because reasonable alternative measures will not prevent the risk; and
ii) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which includes the public interest in open and accessible court proceedings. [27] To meet the necessity part of the test, the requesting party must show: an important interest that can be expressed as a public interest; a real and substantial risk that is well-grounded in the evidence and that poses a serious threat to the interest in question; and no other reasonable alternative to the order sought.
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