Simon's Legal Resources

Open Court - Anonymization (2)

. D.V. v. Cordocedo [here called 'initialization']

In D.V. v. Cordocedo (Ont CA, 2026) the Ontario Court of Appeal partially allowed an appeal, this where the "motion judge approved the settlement and assessed counsel fees payable under a contingency fee agreement with the appellants at a lower amount than proposed".

Here the court reviews the Sherman Estate 'open court' doctrine, here while considering (afresh) open court "initialization and redaction" issues:

[57] This court recently affirmed that the open court principle applies to settlement approval motions under r. 7.08: S.E.C. v. M.P., 2023 ONCA 821, 97 R.F.L. (8th) 54, leave to appeal refused, [2024] S.C.C.A. No. 39, at para. 33. The appellants’ request for initializations and redactions to the court record thus invokes the open court principle. The strong presumption of court openness was affirmed by the Supreme Court in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at paras. 1-2:

This Court has been resolute in recognizing that the open court principle is protected by the constitutionally-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.

[58] Sections 135(1) and (2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) set out the presumption of court openness. Read together, these sections 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: CJA, s. 135(2). Similarly, s. 137 of the CJA provides 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.

[59] Courts may depart from this strong presumption to remain “responsive to ‘competing important public interests’ that may be put at risk by that openness”: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, [2021] 2 SCR 785, at para. 37, citing Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 26, 28.

[60] In considering whether to depart from the presumption of court openness, the court must consider the criteria set out by the Supreme Court in Sherman Estate, at para. 38. In P1 v. XYZ, 2022 ONCA 571, at para. 33, van Rensburg J.A. for this court helpfully summarized the criteria as follows:

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. [Citations omitted.]

....

[62] I agree that the appellants have satisfied the first step of the Sherman Estate analysis. The inherent vulnerability of children that supports protection of their privacy rights was explained by the Supreme Court in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 17:

Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for young people’s privacy under the Criminal Code, the Youth Criminal Justice Act, and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child all based on age, not the sensitivity of the particular child. [Citations omitted.]

[63] This court, in S.E.C., at para. 65, acknowledged that “there is a public interest in the protection of the identities of minor victims of crime and minor persons when made party to litigation (whether as a defendant in a civil action, a criminal accused, or even as a witness).” See also P1, at paras. 40, 43.

[64] In my view, given the particular facts of this case, the protection of the identity of D.V. is an important public interest that is put at serious risk by the open court principle. D.V. is vulnerable due to the permanent injuries to his brain and motor function, which necessitate 24/7 care. However, the motion judge found that his intellect is believed to be intact and he is functioning at an appropriate academic level. He is adept at using a computer. As a result, he is particularly susceptible to online predation as a result of the magnitude of the settlement and the monies to which he could one day have access. I also note the expert evidence that addressed the potential impact on D.V.’s mental health, self-esteem and confidence if sensitive information about him in the record is disseminated. In the circumstances of this case, it is important to protect his identity. Protection of D.V.’s identity necessarily encompasses the names of D.V.’s parents, otherwise his identity would be revealed.

[65] The second stage of the Sherman Estate analysis asks what the least restrictive measures necessary to prevent the identified serious risk to the public interest are.

[66] The appellants seek the initialization of the title of proceedings and redactions to addresses, school name, date of birth, and of any other identifying information. Additionally, they seek very broad redactions to the court record to remove all references to: 1) medical and expert opinions, diagnoses, and other records pertaining to D.V.’s birth injuries and ongoing disabilities, as well as those relating to his present and future needs and care; and 2) the expert reports on damages and the amounts and details of the settlement.

[67] I am of the view that it would be appropriate to initialize the appellants’ names and redact addresses, school name, D.V.’s date of birth, and any other identifying information in the record. This is sufficient to protect D.V.’s identity. The further requested redactions go beyond what represents the least restrictive measures necessary for the protection of D.V.

[68] The initialization and redaction order as I would permit satisfies the third stage of the Sherman Estate test: its benefits outweigh the negative effect on court openness. D.V.’s confidentiality interests are fully protected while maintaining public access to substantive information in the court record that satisfies the public interest in court openness.