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Open Court - Privacy. Khan v. College of Physicians and Surgeons of Ontario [health info] [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. . Harris v. Bayerische Motoren Werke Aktiengesellschaft et al.
In Harris v. Bayerische Motoren Werke Aktiengesellschaft et al. (Div Court, 2024) the Divisional Court considered a class-action discovery redaction issue on appeal, here complicated by the involvement of European and German privacy laws.
Here the court considers the interaction of open court principles with foreign privacy laws, which it addressed in terms of attornment and international comity:3. If Foreign Law required redaction, should such redactions have been allowed?
Position of the parties
[46] Harris submits that even if the GDPR and BDSG requires redaction of relevant documents, it should not be allowed. Harris relies on Laxton v. Coglon et al, 2006 BCSC 1458, for the proposition that a potential breach of foreign law does not excuse a party from its pre-trial discovery obligations in Canada.
[47] In Laxton at paras 34-35 the Supreme Court of British Columbia states:[The defendant] knowingly decided to do business in a jurisdiction (namely, British Columbia) in which, if it became involved in litigation, it would be required to make full disclosure of its documents. Having assumed that risk by doing business in this jurisdiction, it would be unjust to the Plaintiff to excuse [the defendant] from complying with that obligation. Put another way, to exercise my discretion in this case would not only deprive the Plaintiff of her right to be provided with all relevant evidence, but it would permit a foreign country to frustrate the administration of justice in Canada in what is essentially a domestic situation. [48] In response BMW-AG submits that the jurisprudence does not support the proposition that a Canadian court should uncritically enforce and apply its domestic laws without regard to the impact it will have on parties and witnesses under foreign laws.
[49] Canadian courts have repeatedly affirmed that a domestic court should have regard for foreign laws binding on a litigant and facilitate compliance with those laws if it will not interfere with the court’s fact-finding process. BMW-AG cites the decision of the Court of Appeal for Ontario in Frischke v. Royal Bank of Canada (1977), 1977 CanLII 1069 (ON CA), 17 O.R. (2d) 388, at para. 26, where the court states:An Ontario Court would not order a person here to break our laws; we should not make an order that would require someone to compel another person in that person’s jurisdiction to break the laws of that State. We respect those laws. The principle is well recognized. [50] This principle was subsequently followed in TD Bank, N.A. v. Lloyd’s Underwriters, 2016 ONSC 4188, 92 C.P.C. (7th) 181, at para. 18, where the court states:Our courts have always sought means of accommodating the reasonable requirements of foreign law in matters pertaining to the production of documents in litigation. They do so whether by way of recognizing statutory privileges under foreign law or by way of extending comity. Analysis
[51] It cannot be said that the motion judge’s order made at this stage of the litigation with the specified pre-conditions permitting redaction will have the ultimate effect of depriving the plaintiff of his right to be provided with all relevant evidence, especially given the court’s ongoing oversight and the opportunity for subsequent challenges to any and all initial redactions made. The motion judge’s use of redaction allowed the court at this stage of the proceeding to appropriately balance the competing interests, namely avoiding infringement of public interests deserving of protection and compliance with foreign law, without frustrating the Ontario courts’ fact-finding and disclosure process. The order made is consistent with the principles in both the Laxton and Frischke decisions cited by the parties.
[52] I agree with BMW-AG’s submission that this is a matter of international comity; while foreign laws cannot dictate the procedures to be followed by Canadian courts, a foreign litigant should not be compelled to contravene the laws of its jurisdiction if domestic fact-finding process can accommodate compliance with foreign laws. . S.E.C. v. M.P.
In S.E.C. v. M.P. (Ont CA, 2023) the Court of Appeal considers the role of privacy (here of people under disability), balanced here with the 'open court doctrine':(a) Privacy is not, by itself, an important public interest and it is not at significant risk in these appeals
[62] Turning to the first argument, it is essential to ask whether the privacy interests in these appeals constitute an important public interest based on the Supreme Court’s guidance, and then whether the open court principle poses a serious risk to that important public interest in the circumstances of the appeals.
[63] The Supreme Court in Sherman, however, clarified that privacy, in and of itself, is too open-ended to meet the criterion of an important public interest jeopardized by the open court principle: at para: 56. The court emphasized that privacy will only be a sufficient public interest if the disclosure puts the person’s dignity at risk. As the Supreme Court put it, to meet this threshold, the private information must go to the “biographical core” of the person seeking protection, such that its dissemination would result in an affront to the person’s dignity. Dignity will only be at serious risk in limited circumstances, such as where the information reveals something intimate and personal about the individual, their lifestyle, or their experiences: at paras. 73, 75 and 77. Neither 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: at para. 63.
[64] Turning to the r. 7.08 motion context, invariably, the choice to pursue a remedy through litigation involves giving up a measure of privacy. For example, the statement of claim in the litigation leading to the Dr. C. appeal disclosed the name of the plaintiff, the circumstances of the 2017 collision in which his accident occurred, the specific traumatic brain injuries that resulted, and the specific nature of his ongoing limitations in daily life. The statement of claim in the S.T./T.T. litigation similarly includes the names of the plaintiffs, the specific injuries sustained by then seven-month-old S.T., her loss of function, and the effect of her injuries on other family members.
[65] In my view, there is no question 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). This public interest is recognized, for example, in statutory provisions providing for publication bans in the criminal and youth criminal justice contexts. As Abella J. observed 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, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular child.” (Emphasis in original.)
[66] This inherent vulnerability of children also has been recognized for purposes of the first prong of the Sherman analysis. For example, in the context of minor defendants alleged to have committed sexual assaults against the plaintiff. In P1 v. XYZ School, 2022 ONCA 571, at para. 44, this court held that the protection of the identities of minor parties to litigation is an important public interest, and that the open court principle posed a serious risk for the minor parties involved in the litigation on the basis of psychological harm and reputational damage. The court held these circumstances met the first prong of the Sherman test.
[67] In these appeals, the motion judges found no such serious risk of harm. Additionally, the situation is different when dealing with a settlement of a claim where a minor or party under disability, through their litigation guardian, brings litigation against other parties that turn on the disclosure of personal information.
[68] In such cases, in light of the pleadings – whether or not the motion records were sealed – the nature of the incident, injuries, and limitations underlying the claims are part of a public record through the statements of claim. Therefore, those aspects of the litigation can no longer truly be considered “private.” Of course, there is an important difference between facts alleged in pleadings and evidence. Had the matters proceeded to trial, the evidence presented to prove the claim would also form part of the public record.
[69] However, the appellants highlight what they characterize as an unfairness in r. 7.08: that it takes away from parties under a disability the option to keep their settlement, and its underlying record, private. In other words, a settlement involving a 17-year-old is presumptively part of the public record via the r. 7.08 record, while a settlement involving the same settlement scenario, injuries, evidence, and record involving an 18-year-old would be confidential.
[70] I do not find this argument persuasive. The parens patriae rationale for r. 7.08 arises from a bright line drawn in law between those who are and are not minors (as well as between those who are under a disability and those who are not). While this distinction generally provides a protective benefit to those whose settlement requires judicial approval, there will also be cases where this distinction creates the need for limits on the open court principle. Such cases are the reason for the existing discretion to anonymize, redact or seal the record in a r. 7.08 motion.
[71] In Mother Doe v. Havergal College, 2020 ONSC 2227, Myers J., in the context of a motion dealing with various requests to limit court openness in a case of bullying allegations between minor parties at a school, concisely set out why minors, in particular, might need protection from the open court principle:[32] Yet there are times when the public's "right to know" comes into conflict with other public interests. We recognize, for example, that there is a public interest in protecting the physical and mental health and well-being of children. Children are not yet fully developed adults physically, emotionally, or intellectually. They do not enjoy the same legal rights as adults under our laws. For example, children cannot sue or be sued on their own. Their interests must be represented by adult litigation guardians in a lawsuit like Mother Doe and Parent 1 in this case.
[33] Children are vulnerable both developmentally and legally. They are vulnerable to abuses of their health and of their legal rights at the hands of other children and adults alike.
[34] In this case, all parties agree that publication of the children's identities and information that would tend to identify them would subject them to emotional harm — whether as a result stigmatization by others or due to the very real risk of cyber-bullying by members of the public who may hear reports of the parties' unproven allegations and descend upon the minor parties and their families. The public interest requires us to protect children from the risk of emotional harm from abusive, trolling mobs of self-appointed morality police, juries, and executioners from cyberspace. [Emphasis added.] [72] In Mother Doe, which was heard and decided prior to the release of the Sherman decision, the court did not order a full publication ban on the record, but rather crafted an order anonymizing the record by removing the names of minors and identifying information. Myers J. relied on the balancing approach of the Dagenais/Mentuck test, as elaborated in the context of the privacy of children in A.P. v. L.K., 2019 ONSC 4010; Mother Doe, at paras. 29, 35 and 39.
[73] In my view, a similar approach is appropriate in the cases under appeal. The motion judges in each case engaged with the request to seal the record in light of the privacy interest of the minor party or party under disability. In the context of the Dr. C. appeal, the motion judge declined to make the order and provided reasons rooted in the open court principle and the absence of a concrete risk of serious harm. The motion judge stated, “[Dr.] C.’s injuries and resulting impairments are described, but not with such specificity as to cause an affront to his dignity.” While the motion judge declined to make a sealing order, he did, after consideration, order anonymizing the record. The motion judge in the decision giving rise to the S.T./T.T. Appeal also declined to issue a sealing order, as he saw no risk which justified departing from the open court principle, adopting the analysis set out in Carroll. In each case, it is clear that the motion judges were alive to the privacy concerns raised by the appellants.
[74] The appellants argue that the motion judge in each appeal failed specifically to consider the risks inherent in public access to the r. 7.08 motion record. For example, in the context of the Dr. C. Appeal, the appellants argue that Dr. C.’s medical records are entitled to privacy, and additionally that “disability is a stigmatized medical condition that Canada recognizes as worthy of legal protection.” The appellants also argue the motion judge failed to appreciate the impact of Dr. C’s injuries on his family relationships and the implications of disclosure of the confidential finances, operations and records involving Dr. C.’s business.
[75] I would not give effect to these arguments. Medical records may be, but are not necessarily, revealing of core aspects of a person’s identity. Where they are, anonymizing those records or otherwise redacting the record may address any risk without the need for a sealing order. Similarly, the appellants have not demonstrated that information, including the motion record, in the public court file would undermine Dr. C.’s dignity by striking at his “biographical core.” These issues were properly addressed by the motion judge and found to not meet the high bar of a serious risk to an important public interest.
[76] The appellants highlight that the nature of litigation guardianship means neither Dr. C. nor the plaintiffs in S.T./T.T. have “chosen” to disclose their personal information through the settlement approval motion. However, in my view, the very rationale of litigation guardianship concerns ensuring that decisions are made in the best interests of the minor party or party under disability. Indeed, this is why court oversight in this area is so essential. It is inconsistent with this framework to characterize the parties as entitled to greater privacy protection as a result of their interests being protected by litigation guardians.
[77] In short, neither appeal discloses an error on the part of the motion judges in their assessment of the information in the settlement motion records. In neither case is there a basis to conclude that the open court principle jeopardizes information revealing core aspects of the private lives of the parties involved that would erode their dignity such that it would constitute an important public interest for the purposes of the test.
[78] The first prong of the Sherman test is not met on the basis of the privacy interests at stake constituting an important public interest put at serious risk by the open court principle.
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