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Civil Litigation - Public Access - Open Court (3). Chin v. Canada (Attorney General)
In Chin v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a fairness argument on an appeal from a JR challenging a Privacy Act (Privacy Commissioner) decision, here where the appellant argued that the Federal Court JR hearing should have been held in camera:[8] On appeal, Ms. Chin also submits her procedural fairness rights were violated because the hearing was not held in camera. Court proceedings are presumptively open to the public: Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361. The Supreme Court of Canada has consistently said the power to impose limits on open and accessible court proceedings must be exercised with care and restraint: Rémillard v. Canada (National Revenue), 2022 FCA 63 at para. 49, and cases there cited. An in camera hearing is exceptional. . Transdev Canada Inc. v. York (Municipality)
In Transdev Canada Inc. v. York (Municipality) (Div Court, 2023) the Divisional Court considers whether - under the 'open court' doctrine - to order a limited permanent sealing order regarding portions of a JR record, here bid tender documents:[25] Section 137(2) of the Courts of Justice Act permits the Court to order that any document filed in a civil proceeding be treated as confidential, be sealed and that it not form part of the public record.
[26] The test to be applied by a court on a motion for a sealing order was set out by the Supreme Court in Sherman Estate v. Donovan, 2021 SCC 25 at para 38:In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption 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. Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. ....
[36] In City of Niagara Falls v. Ontario Lottery and Gaming Corporation, 2018 ONSC 205, Sweeny J. found that it was appropriate to issue a sealing order over a request for proposal issued by the OLGC. In making that order, he found, at para. 9:[T]hat the need to preserve the confidentiality of the document arising in the context of a procurement process is in the public interest. I am prepared to accept that in the context of seeking appropriate bids, confidential information may be disclosed and that in order to ensure a fair process which results in appropriate bids, the confidential information needs to be protected. ....
(iii) The benefits of the order outweigh its negative effects.
[41] I agree with the parties in this case that there is little, if any, public interest in publicizing the information in the Confidential Documents. The details of the technical and financial proposals are complex, technical, and of little or no interest to the public in general. The public will have access to all of the documents contained in the other five categories of documents.
[42] In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, at paras. 78 and 87, the Iacobucci J. stated:As well, it is important to remember that the confidentiality order would restrict access to a relatively small number of highly technical documents. The nature of these documents is such that the general public would be unlikely to understand their contents, and thus they would contribute little to the public interest in the search for truth in this case.
...
In my view, it is important that, although there is significant public interest in these proceedings, open access to the judicial review application would be only slightly impeded by the order sought. The narrow scope of the order coupled with the highly technical nature of the Confidential Documents significantly temper the deleterious effects the confidentiality order would have on the public interest in open courts. [43] The same analysis applies to the present case. It is likely that the only persons who would be interested in the Confidential Documents to be sealed in this case are the competitors of Miller and Transdev, who would use them precisely for the purpose sought to be avoided by the parties to this motion. That could lead to a less-qualified proponent being selected or to York Region paying a higher contract price than it otherwise would have.
[44] Accordingly, I conclude that the benefits of issuing a permanent limited sealing order over the Confidential Documents outweighs its negative effects on court openness. . Khan v. College of Physicians and Surgeons of Ontario [the para numbers were screwy when first issued]
In Khan v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court extensively and usefully considered an 'open court' issue:The Applicable Principles
[1] The open court principle is a “hallmark of a democratic society” which “has long been recognized as a cornerstone of the common law”: Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, at paras. 23-24. See also: A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11. The presumption that courts are open is fundamental to our justice system and is protected under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.
[2] The freedom of the press to report on judicial proceedings and the right of the public to receive information have also been found to be protected by the constitutional guarantee to freedom of expression: Re Vancouver Sun, 2003 SCC 43, [2004] 2 S.C.R. 332, at para. 26.
[6] Under ss. 135 and 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, this court may impose an order requiring that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.
[7] The test applied when courts are asked to exercise their discretion to order that public access to a file or proceeding be restricted was reaffirmed by the Supreme Court of Canada in Sherman Estate v Donovan, 2021 SCC 25, at para. 38. In Sherman Estate, the Court recast the Dagenais/Mentuck test as follows:(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. [8] All three requirements must be met for a limit on court openness to be ordered.
Application
[9] The evidence that was before the Tribunal that the College requests be subject to a sealing order includes exhibits that contain personal information and personal health information regarding patients of Dr. Khan and their family members. This includes medical records, OHIP billing records, and photographs of patients obtained by the College during investigation. The records contain extensive, sensitive personal health information. In addition to highly personal medical information, the records include identifying and sensitive information such as OHIP numbers and personal addresses. The identities of the patients to whom these records relate are subject to the non-publication order made by the Tribunal.
Court Openness Poses a Serious Risk to an Important Public Interest
[10] In Sherman Estate, at para. 73, the Supreme Court held that “[p]rotecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test.” The Supreme Court further stated that “[v]iolations of privacy that cause a loss of control over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspects of oneself to others in a selective manner”: Sherman Estate, at para. 79. Patient health information, which is ordinarily confidential, strikes at the biographical core of an individual and is “sufficiently sensitive” to warrant the order sought: Sherman Estate, at para. 35.
[11] The confidentiality of patient records and of individuals’ personal information (including health information) is an important public interest. The importance of maintaining confidentiality of health records is enshrined in legislation, such as the Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sched. A (“PHIPA”), which permits disclosure of personal health information (including OHIP numbers) only in limited circumstances. Confidential patient health information strikes at the biographical core of an individual and is sufficiently sensitive to warrant the order sought: Sherman Estate, at para. 35.
[12] In this case, there is also a public interest in ensuring that confidential records obtained by the College by virtue of its statutory investigative powers remain protected. To fulfil its public protection mandate, the College has been granted sweeping powers to obtain records, including confidential personal health information “despite any provision in any Act relating to the confidentiality of health records.”: Code, s. 76(4). Confidential patient records may be obtained by the College and entered into evidence without the patient’s knowledge or consent. The public expects that, except in limited circumstances, their medical records will remain confidential: Osif v. College of Physicians and Surgeons of Nova Scotia, 2008 NSCA 113, at para. 22. This gives rise to a heightened duty to protect the privacy interests of patients and other third parties who have no say in whether their personal health information forms part of the evidentiary record.
[13] The Divisional Court has recognized that sealing orders respecting confidential patient medical records are routine in cases involving discipline of health professionals: Dr Kadri v. College of Physicians and Surgeons, 2020 ONSC 5296, para. 7.
[14] Accordingly, I am satisfied that court openness poses a serious risk to an important public interest.
The Order Sought is Necessary to Prevent This Serious Risk
[15] At the second stage, the court must consider whether reasonable alternative measures are available and restrict the order as far as possible without sacrificing the prevention of the risk: Sherman Estate, at para. 105.
[16] The Appellant submits that a redaction order would be sufficient to protect the patient information.
[17] The College submits that in this case, redaction is not feasible because of the volume of patient records and the risk of omitting to redact personal identifying information. The College has sought to distinguish those documents for which redaction is possible, which would be available in the public record (Appendix II), and those for which it would not be (Appendix I).
[18] The exhibit book consists of almost 4,500 pages containing numerous patient records with identifying information. In Osif, at para. 33, the Nova Scotia Court of Appeal found that redaction of such records was “neither a practical nor reasonable alternative.” In this case as well, the process would be time-consuming, subject to error and would delay the hearing of the appeal, which is scheduled to proceed in a couple of weeks.
[19] As a result, I am not satisfied that there are reasonable alternative measures available that would prevent the risks identified above. In fact, by categorizing the exhibits into those that can be redacted (Appendix II) and those that cannot (Appendix II), the College has proposed a reasonable alternative to sealing the entire record.
The Benefits Outweigh the Negative Effects
[20] In my view, the benefits of the order requested by the College outweigh the negative effects.
[21] First, a sealing order will protect the public disclosure of information identifying patients and their sensitive personal health information.
[22] Second, the negative effects of the order proposed are few. The College does not seek a sealing order over the entire record but has limited the documents for which a sealing order is sought to those that cannot be disclosed, even in redacted form because they contain sensitive personal health and identifying information (Appendix I). The public interest in open and accessible court proceedings does not extend to having access to individual patients’ clinical records or other sensitive personal information. Moreover, it is unlikely that the medical records at issue would be readily comprehensible to lay members of the public.
[23] The public will have access to those records that can be disclosed in redacted form (Appendix II) and the transcripts of the hearing before the Tribunal. The College further requests that the parties be permitted to refer in their facta to information contained in the sealed exhibits, as long as the information does not identify patients, in accordance with the non-publication order granted by the Tribunal under s. 45 of the Code. Needless to say, a complete record, including the sealed documents, will be available to the court.
[24] The hearing of the appeal would be open to the public and the media would be able to be present at the hearing and report all aspects of the case, besides the identities of patients and their family members, and their personal health information. The values underlying freedom of expression, including truth-seeking, would remain unimpeded: Osif, at para. 33. While the Appellant argues that a sealing order would shield the College’s misconduct from public scrutiny, he has not demonstrated how patient identities and personal health records would shed light on the College’s conduct.
[25] I do not accept the Appellant’s argument that a publication ban is not necessary because at least one document is already in the public domain. The photograph appears to have been published in breach of the publication ban ordered by the Tribunal.
[26] Similarly, I do not accept the Appellant’s submission that the records should be publicly available as a source of instruction to the medical community. The court file is for the purposes of adjudicating this proceeding in a manner consistent with the open court principle. Moreover, disclosure of patient records is permitted only in limited circumstances as set out in PHIPA.
[27] In my view, the order sought is as narrow as possible in the circumstances and protects the personal health information of patients while minimizing the impact on freedom of expression and the open court principle. . A.Z. v. Office of the Independent Police Review Director
In A.Z. v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court faced a JR of an OIPRD decision that dismissed her complaint against police officers. Within the JR the applicant sought 'open court' interlocutory orders that her name and identity be withheld, to which the OIPRD consented. In this quote the court extensively sets out the three-part Sherman Estate ('open court') doctrine, and their reasoning in the motion:The Applicable Principles
[1] The open court principle is a “hallmark of a democratic society” which “has long been recognized as a cornerstone of the common law”: Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, at paras. 23-24. See also: A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11. The presumption that courts are open is fundamental to our justice system and is protected under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.
[2] The freedom of the press to report on judicial proceedings and the right of the public to receive information have also been found to be protected by the constitutional guarantee to freedom of expression: Re Vancouver Sun, 2003 SCC 43, [2004] 2 S.C.R. 332, at para. 26.
[8] The test applied when courts are asked to exercise their discretion to order that public access to a file or proceeding be restricted was recently reaffirmed by the Supreme Court of Canada in Sherman Estate v Donovan, 2021 SCC 25, at para. 38. In Sherman Estate, the Court recast the Dagenais/Mentuck test as follows:(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. [9] All three requirements must be met for a limit on court openness to be ordered.
[10] In this case, the Applicant has provided affidavit evidence detailing her concerns about her identity being made public in this proceeding. At the time of the incident, the Applicant was working as an exotic dancer. The Applicant used a stage name and has generally concealed the fact that she previously worked as an exotic dancer because of the stigma associated with such work. The Applicant wishes to have a career as an accountant and was pursuing post-secondary education at the time of the incident. She was also employed in the financial industry. After the incident, the Applicant received medical treatment for PTSD, as indicated in a psychiatrist’s report, and had to discontinue her studies and work. However, she continues to wish to pursue a career as an accountant and fears that the disclosure of her identity would negatively impact her prospects. The Applicant also expresses a fear of reprisal from her former employer from whom she experienced harassment, abuse and exploitation “even before the incident.” The Applicant states that she relocated to a different province because of this fear.
[11] The Applicant further deposes that publishing her identity in connection with this proceeding would cause her greater distress and negatively impact her mental health and that she would not likely proceed with this matter if she were not granted the ability to proceed anonymously.
Application
Court Openness Poses a Serious Risk to an Important Public Interest
[12] In H.(M.E.) v. Williams, 2012 ONCA 35, at para. 27, the Court of Appeal 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.” The Court of Appeal went on to find that the party does not have to establish that they would not go to court absent the privacy protections requested: “[a]ccess to the courts should not come at the cost of a substantial risk of serious debilitating emotional or physical harm to the party seeking access.”: Ibid, at para. 29.
[13] In this case, without assessing the merits of the Applicant’s application for judicial review, there is a public interest in the Applicant’s ability to pursue the application, which engages issues of the conduct of a police investigation into sexual assault allegations, which are of a highly personal and intimate nature, without the fear of reprisal, psychological harm or negative employment consequences.
[14] In addition to the public interest in access to the courts, in my view, the privacy interest raised by the Applicant satisfies the public interest element. In Sherman Estate, at paras. 47-48, the Supreme Court held that “[p]ersonal concerns that relate to aspects of the privacy of an individual who is before the courts can coincide with a public interest in confidentiality.” The Supreme Court recognized that while an individual’s privacy is pre‑eminently important to that individual, “this Court has also long recognized that the protection of privacy is, in a variety of settings, in the interest of society as a whole.”
[15] In Sherman Estate, at para. 71, the Supreme Court further stated that “[v]iolations of privacy that cause a loss of control over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspects of oneself to others in a selective manner[.]” The Supreme Court held that “[p]rotecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test”: Sherman Estate, at para. 73.
[16] In Sherman Estate, the Supreme Court, at para. 77, recognized both subjection to sexual assault or harassment and the sensitivity of “stigmatized work” as personal information that, if exposed, could give risk to a serious risk. In Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100, at paras. 28-29, Favreau J. (as she then was) found that given the stigma associated with stripping, public knowledge of a stripper’s identity makes them vulnerable to losing their employment in jobs other than stripping or in finding other work in the future. In so finding, Favreau J. stated that the evidence “accords with common sense given the stigma associated with working as a stripper and the easy access to information on the internet.”[2]
[17] Moreover, while the Applicant’s case does not concern a statutory publication ban, in Canadian Newspapers Co. v. Canada (Attorney General) 1988 CanLII 52 (SCC), [1988] 2 S.C.R. 122, at para. 15, the Supreme Court recognized that statutory publication bans in sexual assault cases serve the important goal of fostering “complaints by victims of sexual assault by protecting them from the trauma of wide-spread publication resulting in embarrassment and humiliation.”
[18] In this case, the Applicant’s privacy concerns raise an issue of public interest because they relate to her allegations of sexual assault while employed as an exotic dancer. These are core aspects of the Applicant’s private life that engage the Applicant’s dignity.
[19] Moreover, privacy as a public interest concern can be tied to the risk of psychological harm: Sherman Estate, at para. 54. The Applicant has provided evidence of the ongoing psychological impact of the incident on her and the potential that public disclosure of her work as an exotic dancer at the time could result in further emotional and mental distress.
[20] Accordingly, based on both the Applicant’s access to the court and the sensitivity of the personal information at issue, I am satisfied that court openness poses a serious risk to an important public interest.
The Order Sought is Necessary to Prevent This Serious Risk
[21] At the second stage, the court must consider whether reasonable alternative measures are available and restrict the order as far as possible without sacrificing the prevention of the risk: Sherman Estate, at para. 105.
[22] In Work Safe Twerk Safe, at para. 30, this court held that there was no reasonable alternative to an anonymization order because without such an order, the evidence available in the proceeding would be limited to evidence from strippers who were willing to identify themselves. In this case as well, anonymization is necessary to enable the Applicant, who is the only complainant, to come forward.
[23] Similarly, there is no reasonable alternative to an order restricting publication of the Applicant’s identity or identifying information.
[24] The Applicant also seeks an order “for the confidentiality and sealing of documents in this court file that contain the name and identifying information of the Applicant (namely, the Order, consent for the order, the draft Order and Notice of Motion)”. In my view, such an order would not be consistent with minimal impairment of the open court principle in that it would be overly broad and preclude access to the basis for the granting of this motion. As a result, the terms below will require that the motion material be re-filed with the court, anonymized and with any identifying information redacted.
The Benefits Outweigh the Negative Effects
[25] In my view, the benefits of an order protecting the Applicant’s identity outweigh the negative effects. In Canadian Newspapers Co., the Supreme Court held that the harm caused by a publication ban protecting the identity of an individual was minimal because media are still able to be present at a hearing and to report all other facts in the case. The same applies here. An order protecting the Applicant from disclosure of her identity would avoid the risks raised by the Applicant and would have minimal negative effects. The media would be able to be present at the hearing and report all other facts in the case. The Applicant’s identity and identifying information is a “sliver of information” of relative insignificance: A.B. v. Bragg Communications, at para. 28.
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