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Privacy - Open Court. 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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