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Civil Litigation - Public Access - Open Court (2). Medallion Corporation v. Hillier
In Medallion Corporation v. Hillier (Div Court, 2022) the Divisional Court considered an 'open court' case, unusually here in an appeal from the LTB ordering eviction of tenants:Analysis
[8] Normally parties are referred to by name in the title of court proceedings, in accordance with the open court principle and rr. 14.06(1) and 61.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[9] Both the Tenants and the Board cited the Supreme Court of Canada’s recent decision in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 (“Sherman”), which sets out the principles governing the open court principle. In that case, the Supreme Court reaffirmed at para. 30 that “[c]ourt openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy.” Concealing the name of a party, whether by a pseudonym or otherwise, goes against the open court principle because it limits the public’s right to receive information about court proceedings: Canadian Broadcasting Corp. v. R., 2010 ONCA 726, 102 O.R. (3d) 673, at para. 24. To overcome the “strong presumption” of openness, the party asking the court to exercise its discretion to limit public access to the courts must establish the following, per para. 38 of Sherman:(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects. [10] If a privacy interest is alleged, it must be shown that “the information in question strikes at what is sometimes said to be the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings.” Further, “[n]either the sensibilities of individuals nor the fact that openness is disadvantageous, embarrassing or distressing to certain individuals will generally on their own warrant interference with court openness”: Sherman, at paras. 34, 63.
[11] While a serious risk to an important public interest may be established either by direct evidence or on the basis of logical inferences, the “inference must still be grounded in objective circumstantial facts that reasonably allow the finding to be made inferentially. Where the inference cannot reasonably be drawn from the circumstances, it amounts to speculation”: Sherman, at para. 97. . P1 v. XYZ School
In P1 v. XYZ School (Ont CA, 2022) the Court of Appeal considered the 'open court' principle which governs public access to court documents and publication limitations respecting proceedings:[22] The motion judge rendered his decision prior to the release of the Supreme Court of Canada’s decision in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361. His analysis, therefore, followed the two-part Dagenais/Mentuck test: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442.
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(1) The Governing Principles
[30] In any court proceeding, there is a strong presumption of court openness. The open court principle, a “hallmark of a democratic society”, has long been recognized at common law and is also “inextricably tied to the rights guaranteed under s. 2(b) of the Charter”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at paras. 22-23. The Supreme Court recently affirmed the importance of the strong presumption of court openness in Sherman Estate, where Kasirer J. wrote, at paras. 1-2:This Court has been resolute in recognizing that the open court principle is protected by the constitutionality-entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.
Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press. [31] Notwithstanding this strong presumption, courts must also remain “responsive to ‘competing important public interests’ that may be put at risk by that openness”: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, 461 D.L.R. (4th) 635, at para. 37, citing Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 26 and 28.
[32] The presumption of court openness in civil proceedings in Ontario is expressly set out in the Courts of Justice Act, R.S.O. 1990, c. C.43. Sections 135(1) and (2), read together, provide that court hearings are open to the public unless “the possibility of serious harm or injustice to any person justifies a departure” from the open court principle. Section 137 similarly sets out the presumption that documents filed in civil proceedings are public, unless the court orders that they be treated as confidential, sealed and not form part of the public record.
[33] In considering whether to depart from the presumption of court openness in this case, the motion judge applied the two-part Dagenais/Mentuck test. However, the Supreme Court has since reformulated the test for discretionary limits on presumptive court openness, “without altering its essence”: Sherman Estate, at para. 38. The person asking the court to exercise its discretion to limit court openness (whether by a publication ban, a sealing order, an in camera order, or any other type of discretionary confidentiality order) must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects. A court will only order a discretionary limit on court openness where all three of these prerequisites are met: Sherman Estate, at para. 38. I will briefly describe each of these prerequisites, structured as the three stages of the Sherman Estate test, in turn.
[34] The first stage of the Sherman Estate test is a “high bar”: Sherman Estate, at para. 3. It requires the person seeking a discretionary confidentiality order to demonstrate, as a threshold requirement, that there is an important public interest at stake and that court openness poses a serious risk to this interest. The Supreme Court explained that, at least theoretically, these are two “separate and qualitatively distinct operations”: at para. 42. In other words, even where a valid important public interest has been identified, a confidentiality order will be refused if this interest is not at serious risk on the facts of a given case: at para. 42. 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 Estate, at para. 97. Both the probability of the harm and its gravity are relevant to the assessment: at para. 98.
[35] At the second stage of the test, the person seeking to limit court openness must show that the particular order sought is necessary to address the risk. If less restrictive measures would likely be sufficient as a reasonable alternative to prevent the serious risk to the identified public interest, the order sought would represent an unacceptable restriction on the open court principle: at para. 105. The court must determine “whether there are alternatives to the order sought and … restrict the order as much as reasonably possible to prevent the serious risk”: at para. 105.
[36] At the third and final stage of the test, the person seeking to limit court openness must show that the order they seek is proportionate – that is, that its benefits outweigh its harmful effects, including the negative impact on the open court principle. This requires a contextual balancing, informed by the importance of the open court principle and whether the information the order seeks to protect is peripheral or central to the judicial process: at para. 106.
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b) The first stage of the Sherman Estate test: serious risk to an important public interest
[39] The motion judge identified the public interest as the protection of the minor parties’ privacy interests in order to protect them from psychological harm and reputational damage given their vulnerability as minors both legally and developmentally: at para. 14. The parties all agree that there is a public interest in protecting the minor parties’ privacy and identities.
[40] The public interest in the protection of the identities of minor victims of crime and minor accused persons is recognized in statutory provisions providing for publication bans in the criminal and youth criminal justice contexts: see, for example, s. 486.4(1) of the Criminal Code (non-publication of the identity of a victim or witness in sexual offences); ss. 486.4(2.1) and (2.2) of the Criminal Code (non-publication of the identity of a victim under 18 in respect of other offences, which is mandatory on application of the victim or the Crown); and the Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 110 and 111 (statutory prohibition against the publication of the name of a young person dealt with under the Act and any information related to a young person if it would identify that person). See also F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880, at paras. 14-17, and R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at paras. 40-43 (both cases dealing with young offenders); and A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at paras. 14-27 (permitting a young person to proceed anonymously with a civil claim in respect of alleged sexualized cyberbullying).
[41] I am satisfied that “court openness” – that is, proceeding with the litigation in the normal course, under the presumption of court openness and without any confidentiality order or publication ban – would present a serious risk to an important public interest in this case.
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c) The second stage of the Sherman Estate test: necessity
[46] At the second stage, the focus 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: Mentuck, at para. 36; Sherman Estate, at para. 105.
[47] The burden remains on the person seeking to restrict court openness through a confidentiality order to establish that the restrictions on court openness are needed, in order to respond to the serious competing interest that has been identified. There must be a “convincing evidentiary basis”: C.B.C. v. New Brunswick, at para. 39. In the context of a confidentiality order that is intended to protect the identity of minors, “evidence would be required to show that the naming of other persons or places could disclose the identity of the [minor complainant]”: Southam Inc. v. R. (1989), 1989 CanLII 7177 (ON CA), 47 C.C.C. (3d) 21 (C.A.), at p. 24.
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d) The third stage of the Sherman Estate test: proportionality
[66] At the third stage, the Minor Defendants must show that the benefits of any order necessary to protect from a serious risk to revealing the minors’ identities outweigh the harmful effects of the order, including the negative impact on the open court principle: Sherman Estate, at para. 106, citing to Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at para. 53. As part of this balancing, the court will consider whether the information the order seeks to protect from public access is peripheral or central to the judicial process. . Fibrogen, Inc. v. Akebia Therapeutics, Inc.
In Fibrogen, Inc. v. Akebia Therapeutics, Inc. (Fed CA, 2022) the Federal Court of Appeal considered pre-trial 'protective orders and confidentiality agreements' used in intellectual property litigation as an exception to the 'open court' principle:[8] I note, parenthetically, that five months prior to the execution of the Agreement in August 2020, this Court settled the question whether the Sierra Club standard (Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 [Sierra Club]) applied to protective orders (essentially court imposed confidentiality agreements), and confidentiality agreements such as the one under consideration. In February 2020, in Canadian National Railway Company v. BNSF Railway Company, 2020 FCA 45, [2020] 3 F.C.R. 124 [Canadian National], this Court held that the Sierra Club standard did not apply to protective orders.
[9] Protective orders and confidentiality agreements regulate how documents and information are to be exchanged between the parties during the pre-trial proceedings, and, as such, do not engage the open court principle and the Sierra Club standard. Sealing orders, in contrast, remove from the public record the materials that would otherwise be made public. In Canadian National, this Court said at paragraph 24 of its reasons:It bears emphasis that the underlying interests in seeking protective orders and confidentiality orders are significantly different. This was acknowledged by the Motions Judge in the present instance when he observed that “a protective order has no deleterious effects on the principle of open and public courts”, unlike confidentiality orders. Yet, the Motions Judge deemed that “a request for a protective order should be considered using the same criteria as set out in paragraphs 53 and following of Sierra Club for a confidentiality order” (Motions Judge Reasons for Order at para. 19). This is inconsistent given that the criteria in Sierra Club are meant to address interests, in particular the open court principle, which are simply not in play in the context of protective orders at the pre-trial discovery stage. This was made clear by the Supreme Court in Juman v. Doucette, 2008 SCC 8, [2008] 1 S.C.R. 157, where the Court stated (at para. 21):[…] Pre-trial discovery does not take place in open court. The vast majority of civil cases never go to trial. Documents are inspected or exchanged by counsel at a place of their own choosing. In general, oral discovery is not conducted in front of a judge. The only point at which the “open court” principle is engaged is when, if at all, the case goes to trial and the discovered party’s documents or answers from the discovery transcripts are introduced as part of the case at trial. [10] Protective orders and confidentiality agreements are integral to how litigation proceeds in the Federal Court. These agreements, often reached with little or no intervention of the Court, ensure that pre-trial proceedings are conducted in an efficient manner and on a common understanding between the parties as to how documents will be exchanged in a manner that does not put legitimate business interests at risk. They ensure that discoveries are timely and progress in a predictable manner, which is particularly critical given the mandatory time frames within which lengthy and complicated intellectual property trials must be completed in the Federal Court. Protective orders and confidentiality agreements remain subject to the supervision of the Court, particularly by case management judges who may be called on from time to time to resolve differences of opinion as to their terms or to adjust the time frames.
[11] The jurisdiction of the Court to deal with confidentiality agreements as well as any post-trial issues with respect to documents does not depend on the agreement of the parties. This Court, as well as the Federal Court, has an implicit jurisdiction to deal with all documents that are engaged in the proceedings before it both during and after the conclusion of litigation (Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, 461 D.L.R. (4th) 635 at paras. 36, 62 [CBC]).
[12] The provisions in the Agreement whereby the parties attorn to the jurisdiction of the Federal Court to supervise its implementation, while understandably inserted out of an abundance of caution, were unnecessary. The Court will, if necessary, intervene and impose orders as required as part of its implied jurisdiction to supervise proceedings before it and after the litigation ends (CBC; Dugré v. Canada (Attorney General), 2021 FCA 8, [2021] F.C.J. No. 50 (QL); Hershkovitz v. Canada (Attorney General), 2021 FCA 38, 2021 CarswellNat 443). . Khan v. Law Society of Ontario
In Khan v. Law Society of Ontario (Div Ct, 2022) the Divisional Court considered a motion to seal medical record aspects of an administrative and court appeal file:[43] With respect to Mr. Khan’s main argument, s. 135 of the Courts of Justice Act [8]states that “all court hearings shall be open to the public”. It is a fundamental tenet and a rule of the Canadian legal system that the administration of justice is open to be seen and that the public, including the media, are not excluded from viewing and reporting on judicial proceedings.[9] Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy.[10]
[44] However, the open court principle admits of exceptions. Section 135 (2) of the Courts of Justice Act. authorizes the court to exclude the public from a hearing “where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public”. Section 137(2) of the Act authorizes the court to order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.
[45] Where it is shown that there is a serious risk that the disclosure of highly sensitive personal information would be an affront to the affected person’s dignity and be more than just discomfort or embarrassment, an exception to the open court principle may be justified.[11] Although measured by reference to the facts of each case, the risk to the privacy interest will be serious only where the information that would be disseminated as a result of court openness is sufficiently sensitive such that openness can be shown to meaningfully strike at the individual’s biographical core in a manner that threatens their integrity.[12]
[46] In Sierra Club of Canada v. Canada (Minister of Finance),[13] the Supreme Court of Canada formulated a test for when a sealing order should be granted. Justice Iacobucci stated that a sealing order should only be granted when: (1) the 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 (2) 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.
[47] The court will engage in a two-step process to determine whether to seal a court file. The first step is to determine whether there is a serious risk to a public interest that can only be addressed by a sealing or non-publication order. Only if the first step is satisfied will the court in the second step determine how the competing interests are to be balanced. There is a high evidentiary burden on a party seeking a sealing order or a redaction order, and the evidence required for an order to be granted will be subject to close scrutiny and must be convincing.[14]
[48] In my opinion, in the circumstances of the immediate case Mr. Khan has satisfied the test for a confidentiality order. The order is necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk, and the salutary effects of the order outweigh the deleterious effects.
[49] The open court principle can yield if the public interest in protecting privacy and confidentiality outweighs the public interest in openness.[15] Where it is shown that there is a serious risk that the disclosure of highly sensitive personal information would be an affront to the affected person’s dignity and be more than just discomfort or embarrassment, an exception to the open court principle may be justified.[16] Although measured by reference to the facts of each case, the risk to this interest will be serious only where the information that would be disseminated as a result of court openness is sufficiently sensitive such that openness can be shown to meaningfully strike at the individual’s biographical core in a manner that threatens their integrity.[17]
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