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Civil Litigation Dicta - Open Court - New Order Required Up the Appellate/JR Stream?. Law Society of Ontario v. A.A.
In Law Society of Ontario v. A.A. (Div Court, 2024) the Divisional Court was considering an LSO JR challenging a decision by the Law Society Appeal Division that the respondent was of 'good character' for lawyer licensing purposes. Within that JR application the respondent license applicant brought a successful motion to effectively continue an earlier Law Society Tribunal anonymization order.
Here the court considers whether the earlier Law Society Tribunal anonymization order 'automatically' continued up the appellate/JR stream (to the JR) without a further order to that effect (it didn't):B. Does the Law Society Tribunal’s anonymization order apply to the Divisional Court proceedings?
[8] AA argues the order of the Law Society Tribunal applies to the proceedings in this court and, as a result, he was not required to bring a motion for an anonymization order.
[9] In support of his position, AA relies on the decision of this court in Nahas v. Health Professions Appeal and Review Board, 2021 ONSC 6940. In that case, a complaint was filed against Dr. Nahas with the College of Physicians and Surgeons of Ontario. The College investigated the complaint and decided not to initiate disciplinary proceedings but decided Dr. Nahas should be cautioned. Dr. Nahas sought a review of the College’s decision at the Health Professions Appeal and Review Board. The Board made an order during its hearing prohibiting the disclosure of parts of the Record to the parties. The Board ultimately upheld the College’s decision and Dr. Nahas sought judicial review of that decision in the Divisional Court. The Board brought a motion in this court for an order sealing the same portions of the Record that were sealed below. The College of Physicians and Surgeons supported the Board’s motion and counsel for the doctor did not oppose the motion. The complainant objected to information about Dr. Nahas being subject to a sealing order. Justice Corbett granted the sealing order. He held that it was appropriate to grant a parallel sealing order in this Court because until the Board’s order was varied or set aside, it remained in effect. He noted that the sealing order he made was without prejudice to any appeal or application for judicial review in respect of the sealing order made below. However, Justice Corbett noted that none of the parties objected to the non-disclosure order made by the Board and this court will generally not permit a party to object to a non-disclosure order for the first time on an appeal or judicial review application.
[10] The Law Society, on the other hand, argues that the Tribunal’s order does not apply to the proceedings in this court and AA is required to bring a motion for an anonymization order.
[11] In support of its position, the Law Society relies on G.-L. v. OHIP (General Manager), 2014 ONSC 5392. In that case, G.-L. appealed a decision of the Health Services Appeal and Review Board denying her funding to go out of the country for surgery. G.-L. filed her appeal using her initials without seeking an order from this court. The panel hearing G.-L.’s appeal held that a party must obtain an order from this court before using initials or a pseudonym even if an anonymization order was made in the proceedings below. The panel found that the Board’s order applies only to the proceedings before the Board and does not apply to any proceedings before the Divisional Court, which are governed by the Rules of Civil Procedure. The panel noted that Rule 14.06(1) of the Rules of Civil Procedure requires the title of proceedings on all court documents to contain the names of all parties. The panel held that a party can only use initials or a pseudonym if a court order to that effect is made.
[12] In my view, the decisions in Nahas and G.-L. are not inconsistent. In both, the Court held that an order is required in this court before information relevant to an appeal or judicial review application can be sealed or anonymized, even if a similar order was made by the tribunal below.
[13] The Law Society Tribunal’s order is still in effect until it is varied or set aside. However, that anonymization order does not apply to the proceedings in this court. AA was required to bring a motion for an order anonymizing his name, his former spouse’s name and the names of their children.
[14] In most cases, the parties should be able to resolve issues about sealing orders or anonymization orders on consent if the order sought has the same terms as the order below. There will, however, be the odd case where circumstances have changed since the tribunal below made its order and it may not be appropriate for this court to make a similar order. The Law Society argues this is one of those cases.
[15] Before considering the merits of AA’s motion, I want to comment on procedure the Law Society followed in this case. The Law Society filed its application for judicial review with AA’s name anonymized in the style of cause consistent with the order of the Law Society Tribunal. The Law Society did not disclose the names of any of the other parties that are protected by the anonymization order below in its Notice of Application for Judicial Review. When the Law Society filed its Notice, it alerted the Court to the fact that there was a dispute about whether the anonymization order below applies to the court filing and, if not, whether an anonymization order should be made by this court. Through the case management process, a date was scheduled for this motion to be heard and an interim anonymization order was made pending the release of these reasons.
[16] I commend the Law Society for its careful approach. It would have been inappropriate for the Law Society to file a Notice (or any other publicly available document) with AA’s full legal name or the names of the other parties protected by the anonymization order below before giving AA an opportunity to bring a motion for an order protecting their identities in this court. Despite my ruling that the anonymization order below does not apply to the proceedings in this court and that a court order is required, appellants/applicants who know the respondent will want to bring a motion for an anonymization order or a sealing order should not take procedural steps that will render such a motion moot. There are other ways to achieve the same objective. For example, the Law Society could have requested a case conference before filing its Notice to get the Court’s directions. If the Law Society had drafted the Notice with AA’s legal name, it could have sought an interim order sealing pending the hearing of the anonymization order. Whatever procedure is adopted, it must protect the interests of those who are required to bring an anonymization motion until that motion can be heard.
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