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Open Court - Test - Necessary Order. B.E. v. O.R.
In B.E. v. O.R. (Ont CA, 2026) the Ontario Court of Appeal considered the appellant's motion for directions respecting 'open court' issues, these "about the extent to which protective measures should be taken to guard his and the respondent B.E.’s privacy and dignitary interests during the civil appeal process".
Here the court merges it's considerations of the 'necessary order' and the 'proportionality' elements of the Sherman test:4. The protective orders requested by the parties
[42] The second and third branches of the Sherman Estate test require me to examine the specific protective orders that are being sought, and determine whether they are both “necessary … because reasonably alternative measures will not prevent this risk”, and also proportional, in the sense that their benefits outweigh their negative effects: Sherman Estate, at para. 38.
[43] In Law Society of Ontario v. AA, at paras. 183-84, Sossin J.A. explained:Accepted limits on court openness include publication bans, in camera or closed hearings, sealing orders, and orders allowing anonymization or the use of pseudonyms. Both conceptually and as a practical matter, these types of orders operate differently.
Publication bans prohibit the disclosure of information, usually in a publication or broadcast, which is the subject of the ban. This prohibition imposes a duty on the world to refrain from publication. Sealing orders, redaction orders, and anonymization orders, by contrast, treat information in a court file as confidential and outside of the public realm, prohibiting the public from physically accessing, reading, or reviewing the information. More fundamentally, sealing, redaction and anonymization orders pertain to a physical court file, whereas publication bans pertain to intangible information. [Citations omitted.] ....
[56] The first step of the Sherman Estate test requires courts to consider whether there would be a “serious risk to an important public interest” if sensitive personal information in a court file were to become known to third parties: at para. 38. The concern at this stage is whether the information is of a nature “that, if exposed, could give rise to a serious risk”: Sherman Estate, at para. 77 (emphasis added). In other words, the inquiry is into the nature and type of harm that could result from exposure, not the probability of exposure occurring if the file is not sealed.
[57] In contrast, the second and third prongs of the Sherman Estate test require the likelihood of the anticipated harm actually materializing to be factored into the balancing analysis: J.O.P., at para. 11. Even when a court file contains sensitive information, if there is no good reason to expect members of the public to actually seek access to the court file, it cannot be said that a sealing order, rather than the less intrusive protective measure of a publication ban, will be “necessary to prevent this serious risk”: Sherman Estate, at para. 38. Likewise, if the harm caused by dissemination of sensitive information in a court file would be serious, but the likelihood of this dissemination actually occurring is small, the benefits of making a sealing order may be disproportionate to the negative impact such orders have on the public interests served by having court files open to public inspection.
[58] In this case, I am not persuaded that a sealing order over the entire court file is necessary to adequately protect the dignitary harm B.E. or O.R. might suffer if their identities were made public. On the record before me, there is no reason to expect many members of the public to seek access to the court’s file in this appeal. While the case may be of interest to a subset of the bar, as evidenced by the number of requests Ms. Matas has received from lawyers seeking copies of the trial decision, few lawyers are likely to take the further step of requesting access to this court’s complete appeal file. If any do, the publication ban that I propose to make will limit their ability to disseminate the information in the file more broadly. Further, any other person, including members of the media, who obtains access to the court file will be similarly constrained.
[59] As O’Bonsawin J. observed in T.W.W., at para. 75:Sealing orders and in camera hearings are greater incursions on court openness compared to publication bans, because they more absolutely limit public discourse on the subject information by preventing access to the protected material entirely. [Citation omitted.] In my opinion, it would not strike a proportionate balance in this case to order that the entire court file be sealed. The parties have not demonstrated that a publication ban alone will fail to substantially protect their dignitary interests in the circumstances of this case. (However, as I will discuss later, I am satisfied that special measures are justified in respect to some of the parties’ medical records.)
[60] I recognize that if I do not seal the entire appeal file this will undermine the efficacy of the sealing order made by the trial judge over the trial file, since many of the documents in the trial file are reproduced in the documents that will be included in this court’s file once the appeal is perfected. However, this is an ordinary consequence of the fact that it is up to each court to decide for itself what limits on the open court principle are appropriate. As Sossin J.A. explained in Law Society of Ontario v. AA, at para. 185.Since each court has the power to decide whether to make an order limiting court openness in its own proceeding, information may be treated differently in one court than it is in another. For example, one court may decide that a document in its court record should be sealed. Another court may take the opposite approach. The practical result is that the document will be accessible if a copy can only be obtained from one court, but not the other. [61] I am also not persuaded that there is any need for me to make an order requiring that all documents that are to be placed in the court’s file be anonymized to remove references to the parties’ names.
[62] I appreciate that on December 23, 2021, Myers J. made a pre-trial order along these lines, directing that documents already in the Superior Court file could be replaced “by documents bearing the new title of proceedings and referring internally to the parties by their initials.” Koehnen J. later made a further order on March 23, 2022 directing that “any medical records [O.R.’s counsel at the time] intends to rely on for any motions will be sealed and anonymised”.
[63] However, the parties did not internally anonymize the documents they filed during the trial, in part because the trial judge made an order pre-emptively sealing the entire trial file. As a result, there are numerous documents in the Appeal Book and Compendium that use the parties’ full names, including: (i) the pleadings; (ii) multiple documents from B.E.’s and O.R.’s medical records; (iii) B.E.’s academic and employment records; (iv) text message exchanges between B.E. and O.R.; and (v) transcripts of B.E.’s examination for discovery. I was not provided with copies of the five-volume Exhibit Book, but was only given its table of contents. However, I have little doubt that the Exhibit Book, which appears to be well over 4,000 pages in length, contains not only copies of many of these same documents, but also many more additional documents that also directly or indirectly reveal the parties’ identities.
[64] In my view, it would not be practicable for me to order counsel to now comb through these voluminous documents to redact and initialize the parties’ names wherever they appear. Moreover, I am satisfied that such an order is unnecessary, and that B.E. and O.R.’s privacy and dignity interests will be adequately protected by the discretionary common law order I plan to make prohibiting publication of any information in this court’s file that would reveal their identities.
[65] To be clear, while I am not prepared to order that the entire court file be anonymized, I am satisfied that anonymization remains appropriate in the more limited sense that the parties shall continue to be identified by initials in the style of cause, and in any new documents that are created for this appeal. However, I am not requiring counsel to alter any existing documents in the trial record that have not already been initialized.
[66] Finally, I do not agree with O.R. that the appeal should be heard in camera. In my view, such a significant interference with the open court principle is neither necessary nor proportionate in this case.
[67] O.R.’s request for an in camera hearing arose in part because his current counsel believed that the trial itself had been conducted in camera. This was understandable, since his current counsel were only retained after the trial, and since the trial transcripts have been marked “In Camera/Sealed”.
[68] However, the transcript of the trial judge’s November 14, 2023 oral ruling satisfies me that she did not actually order that the trial would proceed in camera. Indeed, nobody asked her to make such an extraordinary order. The trial judge also at one point asked B.E.’s counsel, Ms. Matas, whether she was requesting a witness exclusion order, which implies that the trial judge was not intending that the public at large (including witnesses) would be excluded from the courtroom. Finally, while Ms. Matas’s submissions are not evidence, she was present throughout the trial and advised me that she understood that the public was not being excluded.
[69] In any event, the question I must decide is whether O.R. has met his burden of justifying ordering that his appeal be heard in camera. Whether or not the public was excluded from the trial proceedings, I am not satisfied that O.R. has demonstrated that such a substantial interference with the open court principle on appeal is either necessary or proportional.
[70] O.R. argues in his factum that the appeal hearing should be held in camera because “the oral argument of the [a]ppeal will involve the discussion and explication of all of the sensitive personal and private information” that engages the parties’ dignitary interests. However, the airing of this information in court will only jeopardize B.E. and O.R.’s dignitary interests if their identities are also disseminated or revealed more broadly. I am satisfied that the publication ban I will be ordering will adequately protect them from this risk.
[71] I appreciate that if the appeal is argued in a public hearing, counsel will have to stickhandle around the details of B.E. and O.R.’s personal lives that might, in combination, permit observers to infer their identities. However, this is not an insuperable task. Counsel in criminal sexual offence appeals routinely deal with this problem by not discussing irrelevant details in open court, and relying on the fact that the panel will have read their factums and be familiar enough with the record to avoid having to mention revelatory facts that are important to the arguments on appeal. I am confident that counsel in this appeal will be able to do the same.
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