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Open Court - Sherman Test (2). Khan v. College of Physicians and Surgeons of Ontario [the para numbers were screwy when first issued by Canlii]
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. . Turner v. Death Investigation Council et al.
In Turner v. Death Investigation Council et al. (Div Ct, 2021) the Divisional Court considered the 'open court' doctrine:Recent Law Governing the Open Court Principle
[35] In Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court of Canada affirmed that it “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”: Sherman Estate para. 1.
[36] The substance of the approach to the open court principle articulated in cases such as Sierra Club, 2002 SCC 41 was affirmed. The analytical method, however, for the consideration of requests for sealing orders and the like was clarified and restated. 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. [37] 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. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22): Sherman Estate, para 38.
[38] The discretion is structured and controlled in this way to protect the open court principle, which is constitutionalized under the right to freedom of expression at 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 para. 23). Sustained by freedom of expression, the open court principle is one of the foundations of a free press given that access to courts is fundamental to newsgathering: Sherman Estate, para. 39.
[39] The strong presumption in favour of open courts 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: Sherman Estate, para. 2.
[40] However, personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest relevant under Sierra Club. Dignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of the individual and, like other important public interests, is a matter that concerns society at large. A court can make an exception to the open court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals’ personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information. The question is not whether the information is “personal” to the individual concerned, but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting: Sherman Estate, para.33.
[41] This public interest in privacy focuses the analysis on the impact of the dissemination of sensitive personal information, rather than the mere fact of distribution, which is frequently risked in court proceedings and is necessary in a system that privileges court openness. It is a high bar. This public interest will only be seriously at risk where the information in question strikes at 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: Sherman Estate, para. 34.
[42] Applicants for an order making exception to the open court principle cannot content themselves with an unsubstantiated claim that this public interest in dignity is compromised any more than they could by an unsubstantiated claim that their physical integrity is endangered. The applicant must show on the facts of the case that, as an important interest, this dignity dimension of their privacy is at “serious risk”. For the purposes of the test for discretionary limits on court openness, this requires the applicant to show that the information in the court file is sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity: Sherman Estate, para. 35.
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[62] In Canada (Commissioner of Competition) v Parrish & Heimbecker Limited, 2021 CanLII 82 (CT), the Competition Tribunal rejected a similar argument put forth by the Commissioner of Competition. In that case, the Commissioner proposed that farmers who provided signed witness statements, but who feared economic retaliation from the grain elevator owner for their participation in the investigation, should have their identities redacted. The Tribunal held that this proposal bordered on allegations of witness tampering and witness intimidation. Compelling evidence would be required to support such an approach. However, the Commissioner’s evidence fell well short of the mark in that case. See also: Adult Entertainment Association of Canada the Nuden v. Ottawa (City), 2005 CanLII 16571 where Hackland J. rejected a request for anonymity on behalf of female adult entertainment performers seeking to challenge a bylaw.
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