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Open Court - Sherman Test
COMMENT
The 'Sherman test' is essentially the same as the RJR-MacDonald interlocutory-injunction/stay test.
MORE CASES
Part 2
. Canadian Broadcasting Corp. v. Named Person
In Canadian Broadcasting Corp. v. Named Person (SCC, 2024) the Supreme Court of Canada allows an appeal, here where open court doctrine competes with informer privilege.
Here the court usefully summarizes the open court principle:[26] It will be helpful to begin the analysis by reviewing the importance of the open court principle and the rules surrounding informer privilege.
A. Court Openness: A Pillar of Our Free and Democratic Society
[27] This Court has repeatedly affirmed that the open court principle, which is protected by the constitutionally entrenched right of freedom of expression, is a pillar of our free and democratic society (Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at paras. 1 and 30; C.B.C. v. Manitoba, at para. 78; Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162, at paras. 66 and 84; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23‑26; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480 (“C.B.C. v. N.B.”), at para. 23).
[28] The open court principle has two aspects: first, the public nature of hearings and court records, and second, the right to report on court proceedings. Under this principle, every person, as a general rule, has the right to access the courts, to attend hearings, to consult court records and to report on their content (see Sherman, at paras. 1‑2; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, at pp. 1338‑40; S. Menétrey, “L’évolution des fondements de la publicité des procédures judiciaires internes et son impact sur certaines procédures arbitrales internationales” (2008), 40 Ottawa L. Rev. 117, at p. 120, quoting A. Popovici, “Rapport sur le secret et la procédure en droit canadien”, in Travaux de l’Association Henri Capitant, vol. 25, Le secret et le droit (Journées Libanaises) (1974), 735, at p. 742).
[29] Coupled with the existence of free, robust and independent news media, the open court principle performs a number of important social and democratic functions. Among other things, it allows for informed debates and conversations in civil society about the courts and their workings, which helps ensure the accountability of the judiciary. As a result, this principle promotes both judicial independence and an administration of justice that is impartial, fair and in accordance with the rule of law. Open justice also facilitates the public’s understanding of the administration of justice and enhances public confidence in the integrity of the justice system and all of its participants (see Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at pp. 183 and 185; Edmonton Journal, at pp. 1337‑40; C.B.C. v. N.B., at para. 23; Vancouver Sun (Re), at paras. 23‑25; Vancouver Sun, at para. 32; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19 (“C.B.C. v. Canada”), at para. 28; Denis v. Côté, 2019 SCC 44, [2019] 3 S.C.R. 482, at para. 45; Menétrey, at pp. 124‑27).
[30] Bailey and Burkell eloquently describe some of the important functions of open and transparent justice, including in maintaining the legitimacy of the justice system:The very legitimacy of the legal system depends on “public acceptance of process and outcome,” and the open court system promotes this acceptance by ensuring the accountability of the justice system. ...
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It is not just judges who are presumably held to account by the open court principle. The principle is also said to support positive results with respect to other justice system players and functions outside of the courtroom, including police officers and warrants. The openness of trials has been held to be an expression of the judge’s confidence that what happens in the courtroom is “beyond reproach.” Transparency in the processes of justice is not only thought to act as a “powerful disinfectant” for exposing and remedying abuses; by acting in public view, the courts can demonstrate that fair trials (rather than show trials where conviction is a foregone conclusion) are still happening.
The open court principle, therefore, can clearly be understood to be a means of assuring the public accountability of the court system and its key actors, particularly judges. [Footnotes omitted.]
(J. Bailey and J. Burkell, “Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information” (2016), 48 Ottawa L. Rev. 143, at pp. 152‑53)
Their comments clearly underscore how court openness helps to maintain and enhance public confidence in, and serves “in a way as a guarantee of”, the integrity of the justice system, including all of its participants (C.B.C. v. Canada, at para. 28). [31] When it comes to the social and democratic functions of the open court principle, the key role played by the news media cannot be overemphasized. Indeed, without free, robust and independent news media to inform the Canadian public of what is happening in courtrooms, and in the justice system more broadly, open justice is of only limited social and democratic utility. The reason for this is that, in the vast majority of cases, it is the media that serve as “the eyes and ears of a wider public which would be absolutely entitled to attend [proceedings under way] but for purely practical reasons cannot do so” (Sherman, at para. 30, quoting Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161, at para. 16; see also Edmonton Journal, at pp. 1339‑40). As Cory J. wrote in Edmonton Journal, “[i]t is only through the press that most individuals can really learn of what is transpiring in the courts” (p. 1340). It is only the presence of free, robust and independent news media that actually enables the public to understand and form an opinion on the justice system, to hold it accountable and to have confidence in it (see Edmonton Journal, at p. 1340, quoted in C.B.C. v. N.B., at para. 23).
[32] Because of the fundamental importance of court openness, confidentiality orders limiting it can be made by the courts only in rare circumstances. These exceptions, which may be either statutory or judicial in nature, are predicated on the idea that openness cannot prevail if the ends of justice, or the interests that openness is meant to protect, would be better served in some other way (see Scott v. Scott, [1913] A.C. 417 (H.L.); MacIntyre; Edmonton Journal; C.B.C. v. N.B.; see also Menétrey, at p. 126). One of these exceptions is informer privilege, which is the one in question in this case. . 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. . Medallion Corporation v. Hillier
In Medallion Corporation v. Hillier (Div Court, 2022) the Divisional Court considered an 'open court' case, unusually here in an appeal from the LTB ordering eviction of tenants:Analysis
[8] Normally parties are referred to by name in the title of court proceedings, in accordance with the open court principle and rr. 14.06(1) and 61.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[9] Both the Tenants and the Board cited the Supreme Court of Canada’s recent decision in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 (“Sherman”), which sets out the principles governing the open court principle. In that case, the Supreme Court reaffirmed at para. 30 that “[c]ourt openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy.” Concealing the name of a party, whether by a pseudonym or otherwise, goes against the open court principle because it limits the public’s right to receive information about court proceedings: Canadian Broadcasting Corp. v. R., 2010 ONCA 726, 102 O.R. (3d) 673, at para. 24. To overcome the “strong presumption” of openness, the party asking the court to exercise its discretion to limit public access to the courts must establish the following, per para. 38 of Sherman:(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. [10] If a privacy interest is alleged, it must be shown that “the information in question strikes at what is sometimes said to be the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings.” Further, “[n]either 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”: Sherman, at paras. 34, 63.
[11] While a serious risk to an important public interest may be established either by direct evidence or on the basis of logical inferences, the “inference must still be grounded in objective circumstantial facts that reasonably allow the finding to be made inferentially. Where the inference cannot reasonably be drawn from the circumstances, it amounts to speculation”: Sherman, at para. 97. . P1 v. XYZ School
In P1 v. XYZ School (Ont CA, 2022) the Court of Appeal considered the 'open court' principle which governs public access to court documents and publication limitations respecting proceedings:[22] The motion judge rendered his decision prior to the release of the Supreme Court of Canada’s decision in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361. His analysis, therefore, followed the two-part Dagenais/Mentuck test: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442.
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(1) The Governing Principles
[30] In any court proceeding, there is a strong presumption of court openness. The open court principle, a “hallmark of a democratic society”, has long been recognized at common law and is also “inextricably tied to the rights guaranteed under s. 2(b) of the Charter”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at paras. 22-23. The Supreme Court recently affirmed the importance of the strong presumption of court openness in Sherman Estate, where Kasirer J. wrote, at paras. 1-2:This Court has been resolute in recognizing that the open court principle is protected by the constitutionality-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. [31] Notwithstanding this strong presumption, courts must also remain “responsive to ‘competing important public interests’ that may be put at risk by that openness”: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, 461 D.L.R. (4th) 635, at para. 37, citing Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 26 and 28.
[32] The presumption of court openness in civil proceedings in Ontario is expressly set out in the Courts of Justice Act, R.S.O. 1990, c. C.43. Sections 135(1) and (2), read together, 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. Section 137 similarly sets out the presumption 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.
[33] In considering whether to depart from the presumption of court openness in this case, the motion judge applied the two-part Dagenais/Mentuck test. However, the Supreme Court has since reformulated the test for discretionary limits on presumptive court openness, “without altering its essence”: Sherman Estate, at para. 38. 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: Sherman Estate, at para. 38. I will briefly describe each of these prerequisites, structured as the three stages of the Sherman Estate test, in turn.
[34] The first stage of the Sherman Estate test is a “high bar”: Sherman Estate, at para. 3. It requires the person seeking a discretionary confidentiality order to demonstrate, as a threshold requirement, that there is an important public interest at stake and that court openness poses a serious risk to this interest. The Supreme Court explained that, at least theoretically, these are two “separate and qualitatively distinct operations”: at para. 42. In other words, even where a valid important public interest has been identified, a confidentiality order will be refused if this interest is not at serious risk on the facts of a given case: at para. 42. Whether the interest is at “serious risk” is a fact-specific inquiry grounded in the context of the case: at para. 52. A serious risk can be established through direct evidence or through logical inferences, but these inferences must be “grounded in objective circumstantial facts that reasonably allow the finding to be made”: Sherman Estate, at para. 97. Both the probability of the harm and its gravity are relevant to the assessment: at para. 98.
[35] At the second stage of the test, the person seeking to limit court openness must show that the particular order sought is necessary to address the risk. If less restrictive measures would likely be sufficient as a reasonable alternative to prevent the serious risk to the identified public interest, the order sought would represent an unacceptable restriction on the open court principle: at para. 105. The court must determine “whether there are alternatives to the order sought and … restrict the order as much as reasonably possible to prevent the serious risk”: at para. 105.
[36] At the third and final stage of the test, the person seeking to limit court openness must show that the order they seek is proportionate – that is, that its benefits outweigh its harmful effects, including the negative impact on the open court principle. This requires a contextual balancing, informed by the importance of the open court principle and whether the information the order seeks to protect is peripheral or central to the judicial process: at para. 106.
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b) The first stage of the Sherman Estate test: serious risk to an important public interest
[39] The motion judge identified the public interest as the protection of the minor parties’ privacy interests in order to protect them from psychological harm and reputational damage given their vulnerability as minors both legally and developmentally: at para. 14. The parties all agree that there is a public interest in protecting the minor parties’ privacy and identities.
[40] The public interest in the protection of the identities of minor victims of crime and minor accused persons is recognized in statutory provisions providing for publication bans in the criminal and youth criminal justice contexts: see, for example, s. 486.4(1) of the Criminal Code (non-publication of the identity of a victim or witness in sexual offences); ss. 486.4(2.1) and (2.2) of the Criminal Code (non-publication of the identity of a victim under 18 in respect of other offences, which is mandatory on application of the victim or the Crown); and the Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 110 and 111 (statutory prohibition against the publication of the name of a young person dealt with under the Act and any information related to a young person if it would identify that person). See also F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880, at paras. 14-17, and R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at paras. 40-43 (both cases dealing with young offenders); and A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at paras. 14-27 (permitting a young person to proceed anonymously with a civil claim in respect of alleged sexualized cyberbullying).
[41] I am satisfied that “court openness” – that is, proceeding with the litigation in the normal course, under the presumption of court openness and without any confidentiality order or publication ban – would present a serious risk to an important public interest in this case.
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c) The second stage of the Sherman Estate test: necessity
[46] At the second stage, the focus is on “minimal impairment” of the open court principle: the court must consider whether reasonably alternative measures are available and restrict the order as far as possible without sacrificing the prevention of the risk: Mentuck, at para. 36; Sherman Estate, at para. 105.
[47] The burden remains on the person seeking to restrict court openness through a confidentiality order to establish that the restrictions on court openness are needed, in order to respond to the serious competing interest that has been identified. There must be a “convincing evidentiary basis”: C.B.C. v. New Brunswick, at para. 39. In the context of a confidentiality order that is intended to protect the identity of minors, “evidence would be required to show that the naming of other persons or places could disclose the identity of the [minor complainant]”: Southam Inc. v. R. (1989), 1989 CanLII 7177 (ON CA), 47 C.C.C. (3d) 21 (C.A.), at p. 24.
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d) The third stage of the Sherman Estate test: proportionality
[66] At the third stage, the Minor Defendants must show that the benefits of any order necessary to protect from a serious risk to revealing the minors’ identities outweigh the harmful effects of the order, including the negative impact on the open court principle: Sherman Estate, at para. 106, citing to Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at para. 53. As part of this balancing, the court will consider whether the information the order seeks to protect from public access is peripheral or central to the judicial process. . R. v. T.W.W.
In R. v. T.W.W. (SCC, 2024) the Supreme Court of Canada considers the criminal code 'Evidence of complainant’s sexual activity' provisions [CCC 276] - applying to evidence previously used commonly in sex offence charges. The case also involves related 'open court' issues where such evidence may be publically-disclosed.
Here the court cites from the leading case of Sherman Estate for the criteria for restricting public access:(4) Limiting Court Openness in This Case
[71] In my view, in the circumstances of this case, the Crown has not established that the Court should exercise its discretion to make all of the requested orders. My analysis is guided by the test articulated by Kasirer J. in Sherman Estate at para. 38, affirming the test set out in Dagenais and Mentuck: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.
(See also, generally, Dagenais, at p. 878; Mentuck, at para. 32.) ....
[73] The threshold to satisfy this test remains high. As Kasirer J. went on to note in Sherman Estate, at para. 63:... in order to preserve the integrity of the open court principle, an important public interest concerned with the protection of dignity should be understood to be seriously at risk only in limited cases. Nothing here displaces the principle that covertness in court proceedings must be exceptional. [Emphasis added.]
(See also MacIntyre, at p. 189; C.B.C. v. New Brunswick, at para. 22.)
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