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Open Court - Sherman Exceptions. Askary v. Information and Privacy Commissioner
In Askary v. Information and Privacy Commissioner (Ont Div Ct, 2026) the Ontario Divisional Court considers exceptions to the Sherman Estate 'open court' doctrine:[8] As noted by the Supreme Court of Canada in Sherman Estate at paras. 2, 3 , and 7, there is a strong presumption in favour of open courts. Inconvenience, embarrassment, and intrusion into private lives may result from accessing the courts. That is not generally enough to overturn the strong presumption that court proceedings and records are open to the public. Exceptional circumstances may exist where competing interests justify a restriction on the open court principle.
[9] The person seeking to infringe on the open court principle by obtaining a sealing order is required to meet the high bar of demonstrating that openness presents a serious risk to a competing interest of public importance, that the order is necessary to prevent the risk, and that the benefits of that order outweigh its negative effects.
[10] The Supreme Court of Canada in Sherman Estate also instructs as follows:a. Protecting human dignity from serious risk may constitute a competing interest of public importance that warrants an exception to the open court principle (para. 7).
b. The court may protect the dissemination of information related to core aspects of individuals’ personal lives of a highly sensitive nature that bears on their dignity (paras. 33 - 35).
c. Dignity will be at risk in only limited cases (para 63).
d. It may include a loss of control over a “highly sensitive aspect of who they are that they did not consciously decide to share” (para. 71).
e. The information must relate the a person’s biographical core (para 75) At paras 11-15 the court consequently walks through it's analysis of the applicant's 'sealing order' arguments.
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