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Open Court - New Order Required Up the Appellate/JR Stream?. Law Society of Ontario v. AA [leading case]
In Law Society of Ontario v. AA (Ont CA, 2026) the Ontario Court of Appeal allowed an LSO appeal, that against the decision on an LSO-brought JR which upheld a LST Appeal Division decision supporting a lawyer application on good character grounds.
The court considers extending (in this court) an open court 'anonymization and non-publication' order, here where prior such orders were granted at the lower court and tribunal levels. It extensively considers the status of such orders in each successive tribunal or court:1. Legal framework
[177] A party asking the court to exercise its discretion to limit court openness through an anonymization order must satisfy the three criteria set out in Sherman Estate, at para. 38:(1) [C]ourt 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. 2. The Divisional Court’s anonymization order does not bind this court, however its publication ban is still in effect
[178] There is substantial authority for the proposition that the anonymization and non-publication order of a lower court does not bind a higher court. This stems from the fact that appellate courts have the power to control their own process and court record. This power is necessarily implied by the legislative grant of adjudicative authority given to appellate courts: CBC v. Manitoba, at paras. 62-63.
[179] The power of a court to control its own process is just that: the power to control its own process. Applying a lower court order restricting the openness of its record to an appellate record would offend the fundamental principle that courts must control their own process and be empowered to exercise other powers that are practically necessary to accomplish the role the law assigns them: CBC v. Manitoba, at para. 62; see also, R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19; Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 27.
[180] The Divisional Court has routinely held that the anonymization orders made by subordinate tribunals do not bind it. For example, in her temporary anonymization decision, Davies J., relying on G-L. v. OHIP (General Manager), 2014 ONSC 5392, 327 O.A.C. 53 (Div. Ct.), at paras. 6-8, leave to appeal to Ont. C.A. refused, M43614 (August 22, 2014), concluded that parties are required to bring a separate motion if they wish to be anonymized in proceedings before the Divisional Court, even if they were anonymized in proceedings before a subordinate body: see also, Nahas v. Health Professions Appeal and Review Board, 2021 ONSC 6940 (Div. Ct.). It follows that this court is similarly not bound by the anonymization and non-publication orders of lower courts.
[181] The authorities AA cites for the contrary proposition are distinguishable. This is particularly so because several of those authorities, like R.A.R. v. College of Physicians and Surgeons of Ontario (2006), 2006 CanLII 37118 (ON CA), 275 D.L.R. (4th) 275 (Ont. C.A.), deal with mandatory anonymization/non-publication orders (or orders where proceedings were presumed not to be public) and the Sherman Estate framework only applies to discretionary orders: Sherman Estate, at paras. 37-38.
[182] It is helpful to make a comment in this context about the distinction between the different types of orders limiting court openness and the finding that the applicability of such orders is limited to the court that made them.
[183] Accepted limits on court openness include publication bans, in camera or closed hearings, sealing orders, and orders allowing anonymization or the use of pseudonyms: James Rossiter, Law of Publication Bans, Private Hearings and Sealing Orders (Toronto: Thomson Reuters, 2006) (loose-leaf updated May 2025, release 1), at § 1:6. Both conceptually and as a practical matter, these types of orders operate differently.
[184] Publication bans prohibit the disclosure of information, usually in a publication or broadcast, which is the subject of the ban: Rossiter, at § 1:7. This prohibition imposes a duty on the world to refrain from publication. Sealing orders, redaction orders, and anonymization orders, by contrast, treat information in a court file as confidential and outside of the public realm, prohibiting the public from physically accessing, reading, or reviewing the information: Rossiter, at § 1:12, 1:13. More fundamentally, sealing, redaction and anonymization orders pertain to a physical court file, whereas publication bans pertain to intangible information: Rossiter, at § 1:12.
[185] Since each court has the power to decide whether to make an order limiting court openness in its own proceeding, information may be treated differently in one court than it is in another. For example, one court may decide that a document in its court record should be sealed. Another court may take the opposite approach. The practical result is that the document will be accessible if a copy can only be obtained from one court, but not the other.
[186] Publication bans, on the other hand, operate differently. For example, if a lower court imposes a publication ban over certain information and an appellate court declines to impose a ban over the same information, and the order below is not set aside, varied, stayed, or appealed, the practical result is that disclosure of the information is still prohibited by operation of the first ban: see e.g., CBC v. Chief of Police, 2021 ONSC 6935, 158 O.R. (3d) 401 (Div. Ct.), at paras. 41-55; Laity v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 4557 (Div. Ct.), at para. 11.
[187] There is a potential for inconsistent results between different levels of court or administrative tribunals. This may seem like an unusual outcome, but it is, in fact, well-founded in the open court principle. Whether to impose a discretionary order limiting court openness is always a contextual balancing exercise, based on the circumstances before the court at the time it is considering the requested order, including whether the information at issue is peripheral or central to the judicial process: Sherman Estate, at paras. 105-6; XYZ School, at para. 36. Often, the circumstances advanced in support of a confidentiality order are different before an appellate court than they were before a lower court. The balancing exercise in the Sherman Estate analysis will be different and may therefore appropriately lead to a different result.
[188] This inconsistency can also be remedied, if the circumstances warrant it. Courts retain supervisory jurisdiction over their own records to make or vary court openness orders after a formal order is entered on the merits: CBC v. Manitoba, at para. 38. The landscape that led a lower court to impose a confidentiality order may be entirely different when it comes time for an appellate court to consider a motion for the same order. As discussed below, that may well be the case in these proceedings. Additionally, the change in circumstances that led an appellate court to make a different order than the lower court may provide a basis for an interested party to seek to set aside or vary the original confidentiality order made by the lower court.
[189] The facts of this case illustrate this point. In this case, AA moves for an order anonymizing his name and the names of his former spouse and children from the publicly accessible court file. He also moves in this court for a publication ban over any information that would tend to identify any of them.
[190] However, the confidentiality orders imposed by the Tribunal and the Divisional Court remain intact (subject to the Law Society’s appeal of the Divisional Court’s confidentiality order, which I address below). Accordingly, the publication ban first imposed by the Hearing Division continues to prohibit disclosure of information that would identify AA or his family, but that is not because the order applies in this court. Instead, it is a feature of the Hearing Division’s order not having been set aside, varied, appealed, or stayed. The sealing and anonymization orders imposed by those bodies also remain intact, but because they cover different physical court files, this has no practical impact on this court, which must decide whether to exercise its powers to control its own process and impose an order sealing material in its own file.[6] . 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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