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Open Court - Sealing Order (2). 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] . 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. . S.E.C. v. M.P.
In S.E.C. v. M.P. (Ont CA, 2023) the Court of Appeal considered a motion for a sealing order, in part grounded in advancements in technology which can use court-accessible data to generate more personal information regarding case parties:[19] The appellants seek to introduce fresh evidence to demonstrate how private and confidential information about infant plaintiffs has been obtained and disseminated by news organizations using materials filed as part of settlement approval motions.
[20] The fresh evidence is comprised of an affidavit by one of the lawyer’s representing the appellants, together with an exhibit. The affidavit asserts that ONe-Key (a free, online government service) can be used to obtain a court file number and consequently statements of claim containing the full name of the parties despite initialization in the decision. The affidavit includes a private company’s marketing of “precedents” based on information scraped from publicly available court files. The exhibit is a story from a newspaper that included details of a settlement of personal injury litigation involving an infant plaintiff and links to the underlying litigation record through CanLII. . Ricard v. The University of Windsor
In Ricard v. The University of Windsor (Div Ct, 2021) the Divisional Court considered a motion for a sealing order and publication ban in a judicial review application:[6] I am satisfied that this is an appropriate case for a publication ban and sealing order and that it meets the recently restated test in Sherman Estate v. Donovan, 2021 SCC 25. As held by the Supreme Court, the test requires the court to find that:a. Court openness poses a serious risk to an important public interest;
b. The order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and
c. As a matter of proportionality, the benefits of the order outweigh is negative effects. [7] With respect to the first part of the test, in Sherman Estate, the Supreme Court recognized that preservation of an individual’s dignity is a matter of public interest. At para. 75, the Court held that a person’s dignity can be at risk if sensitive personal information relevant to core aspects of that person’s life are made public through court proceedings. At para 77, the Court specifically identified “subjection to sexual assault or harassment” as the type of personal sensitive information that, if exposed, could pose a serious risk to a person’s dignity. Keeping the identity of complainants confidential in the context of cases involving allegations of sexual assault is also consistent with sealing orders and publication bans made in civil cases that predate the Sherman Estate decision. For example, as held by Faieta J. in Fedeli v. Brown, 2020 ONSC 994 (Sup. Ct.), at para. 9:The privacy interests of a person who makes an allegation of sexual assault or sexual harassment in a civil proceeding is high, particularly when she has not initiated the civil proceeding. A complainant may be subject to unnecessary trauma and embarrassment, both for herself and her family, if she is identified. Without protection of her privacy interests, a person who has been sexually assaulted or sexually harassed may be unwilling to come forward. Further, the failure to afford such protection to a person alleging sexual assault or sexual harassment may deter other persons from coming forward to report sexual misconduct. Such interests are recognized and protected in a criminal proceeding as s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, provides that an order banning publication of any information that could identify a victim of sexual assault is mandatory if sought by the Crown or victim. In my view, the policy reflected by s. 486.4 of the Criminal Code is equally applicable in these civil proceedings. [8] Accordingly, I am satisfied that there is a public interest in protecting the confidentiality of Jane Doe and other complainants involved in this case and, therefore, the order requested in this case meets the first part of the Sherman Estate’s test.
[9] I am also satisfied that the order meets the two other parts of the test. The order is necessary to prevent the risk that Jane Doe and the other complainants will be publicly identified. With one small exception addressed below, the relief sought is not overly broad. Finally, the benefits of the order sought outweigh its negative effects. Protecting the privacy interests of Jane Doe and other complainants far outweighs any minimal interest the public may have in knowing their identities. . Sherman Estate v. Donovan
In Sherman Estate v. Donovan (SCC, 2021) the Supreme Court of Canada considers the 'open court' principle, in the context of a newspaper reporting on estate proceedings. The case is a definitive statement by the court on this freedom of expression and privacy issue since Sierra Club of Canada v. Canada (Minister of Finance) (SCC, 2002). See paras 29-36 for a summary, with the 'Test for Discretionary Limits on Court Openness' at paras 37-45, and general comments on the issue of privacy at paras 46-85]:[1] 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.
[2] 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.
[3] Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on the open court principle. Where a discretionary court order limiting constitutionally‑protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects.
[4] This appeal turns on whether concerns advanced by persons seeking an exception to the ordinarily open court file in probate proceedings — the concerns for privacy of the affected individuals and their physical safety — amount to important public interests that are at such serious risk that the files should be sealed. The parties to this appeal agree that physical safety is an important public interest that could justify a sealing order but disagree as to whether that interest would be at serious risk, in the circumstances of this case, should the files be unsealed. They further disagree whether privacy is in itself an important interest that could justify a sealing order. The appellants say that privacy is a public interest of sufficient import that can justify limits on openness, especially in light of the threats individuals face as technology facilitates widespread dissemination of personally sensitive information. They argue that the Court of Appeal was mistaken to say that personal concerns for privacy, without more, lack the public interest component that is properly the subject‑matter of a sealing order.
[5] This Court has, in different settings, consistently championed privacy as a fundamental consideration in a free society. Pointing to cases decided in other contexts, the appellants contend that privacy should be recognized here as a public interest that, on the facts of this case, substantiates their plea for orders sealing the probate files. The respondents resist, recalling that privacy has generally been seen as a poor justification for an exception to openness. After all, they say, virtually every court proceeding entails some disquiet for the lives of those concerned and these intrusions on privacy must be tolerated because open courts are essential to a healthy democracy.
[6] This appeal offers, then, an occasion to decide whether privacy can amount to a public interest in the open court jurisprudence and, if so, whether openness puts privacy at serious risk here so as to justify the kind of orders sought by the appellants.
[7] For the reasons that follow, I propose to recognize an aspect of privacy as an important public interest for the purposes of the relevant test from Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522. Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity. Where this narrower dimension of privacy, rooted in what I see as the public interest in protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified. . Reference re iGaming Ontario
In Reference re iGaming Ontario (Ont CA, 2024) the Ontario Court of Appeal considered an unusual 'reference' [CJA s.8] case, here where the Ontario Crown wished legal issues resolved regarding Criminal Code-authorized gaming.
Here, while considering evidence allowed by intervenors in the reference, the court considers 'open court' issues:Confidentiality order motion
[19] The CGA [SS: 'Canadian Gaming Association'] brought a motion seeking to have certain portions of the proposed evidence sealed in the event the court grants leave to file some or all of the proposed evidence. The CGA refers to the portions of the proposed evidence it seeks to seal as the “Sensitive Evidence”.[1]
[20] In support of its motion for a sealing order, the CGA relies on the test from Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 38, and argues 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. [21] On the first prong of this test, the CGA argues that the Sensitive Evidence could cause Ontario operators to suffer reputational harm, and that other operators identified by name in the Sensitive Evidence are not involved in the reference and have no opportunity to answer the allegations against them. The CGA asserts that there is an important public interest in limiting court openness when reputational and regulatory harm would result from unproven allegations against non-parties, especially in the reference context, which is not designed to permit the impugned non-parties an opportunity to respond. The CGA says that allowing the public to access the Sensitive Evidence in this context would cause harm to the court’s process. Flutter supports the CGA’s motion. British Columbia and the Canadian Lottery Coalition Members oppose the motion.
[22] The CGA has not established that public access to the Sensitive Evidence would pose a serious risk to an important public interest. The CGA did not provide any direct evidence of harm, but asserted instead that it would be reasonable to infer that allegations of criminal conduct could entail regulatory consequences for Ontario operators named in the Sensitive Evidence. The alleged regulatory or reputational harm is a private interest that would not justify an order limiting public access: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at para. 55. In any event, the Sensitive Evidence is largely already public. There is little justification or purpose in granting a sealing order over information that is already in the public domain: Fletcher v. Ontario, 2024 ONCA 148, at para. 141.
[23] Nor am I persuaded that public access to the Sensitive Evidence poses a serious risk of harm to the court’s process. On the contrary, given my conclusion above that the proposed evidence may assist the panel in answering the reference question, the integrity of the court process is best served by public access to all of the evidence that will be before the panel: Sherman Estate, at para. 39. Since the CGA has not met the first prong of the Sherman Estate test, it is not necessary to consider the remaining two prongs.
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