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Privacy - Open Court. Sherman Estate v Donovan [includes privacy as it influences 'dignity']
In Sherman Estate v Donovan (SCC, 2021) the Supreme Court of Canada dismissed an appeal, this brought against an Ontario CA order which allowed an appeal against the granting of an 'open court' sealing order by the Superior Court below. The case is plainly recognized as the leading 'open court' case in Canada.
Here the court addresses the competing policy objective of privacy - which it later connects to the concept of 'dignity':B. The Public Importance of Privacy
[46] As mentioned, I disagree with the Trustees that an unbounded interest in privacy qualifies as an important public interest under the test for discretionary limits on court openness. Yet in some of its manifestations, privacy does have social importance beyond the person most immediately concerned. On that basis, it cannot be excluded as an interest that could justify, in the right circumstances, a limit to court openness. Indeed, the public importance of privacy has been recognized by this Court in various settings, and this sheds light on why the narrower aspect of privacy related to the protection of dignity is an important public interest.
[47] I respectfully disagree with the manner in which the Court of Appeal disposed of the claim by the Trustees that there is a serious risk to the interest in protecting personal privacy in this case. For the appellate judges, the privacy concerns raised by the Trustees amounted to “[p]ersonal concerns” which cannot, “without more”, satisfy the requirement from Sierra Club that an important interest be framed as a public interest (para. 10). The Court of Appeal in our case relied, at para. 10, on H. (M.E.) v. Williams, 2012 ONCA 35, 108 O.R. (3d) 321, in which it was held that “[p]urely personal interests cannot justify non‑publication or sealing orders” (para. 25). Citing as authority judgments of this Court in MacIntyre and Sierra Club, the court continued by observing that “personal concerns of a litigant, including concerns about the very real emotional distress and embarrassment that can be occasioned to litigants when justice is done in public, will not, standing alone, satisfy the necessity branch of the test” (para. 25). Respectfully stated, the emphasis that the Court of Appeal placed on personal concerns as a means of deciding that the sealing orders failed to meet the necessity requirement in this case and in Williams is, I think, mistaken. Personal concerns that relate to aspects of the privacy of an individual who is before the courts can coincide with a public interest in confidentiality.
[48] Like the Court of Appeal, I do agree with the view expressed particularly in the pre‑Charter case of MacIntyre, that where court openness results in an intrusion on privacy which disturbs the “sensibilities of the individuals involved” (p. 185), that concern is generally insufficient to justify a sealing or like order and does not amount to an important public interest under Sierra Club. But I disagree with the Court of Appeal in this case and in Williams that this is because the intrusion only occasions “personal concerns”. Certain personal concerns — even “without more” — can coincide with important public interests within the meaning of Sierra Club. To invoke the expression of Binnie J. in F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880, at para. 10, there is a “public interest in confidentiality” that is felt, first and foremost, by the person involved and is most certainly a personal concern. Even in Williams, the Court of Appeal was careful to note that where, without privacy protection, an individual would face “a substantial risk of serious debilitating emotional . . . harm”, an exception to openness should be available (paras. 29‑30). The means of discerning whether a privacy interest reflects a “public interest in confidentiality” is therefore not whether the interest reflects or is rooted in “personal concerns” for the privacy of the individuals involved. Some personal concerns relating to privacy overlap with public interests in confidentiality. These interests in privacy can be, in my view, important public interests within the meaning of Sierra Club. It is true that an individual’s privacy is pre‑eminently important to that individual. But 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.
[49] The proposition that privacy is important, not only to the affected individual but to our society, has deep roots in the jurisprudence of this Court outside the context of the test for discretionary limits on court openness. This background helps explain why privacy cannot be rejected as a mere personal concern. However, the key differences in these contexts are such that the public importance of privacy cannot be transposed to open courts without adaptation. Only specific aspects of privacy interests can qualify as important public interests under Sierra Club.
[50] In the context of s. 8 of the Charter and public sector privacy legislation, La Forest J. cited American privacy scholar Alan F. Westin for the proposition that privacy is a fundamental value of the modern state, first in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 427‑28 (concurring), and then in Dagg, at para. 65 (dissenting but not on this point). In the latter case, La Forest J. wrote: “The protection of privacy is a fundamental value in modern, democratic states. An expression of an individual’s unique personality or personhood, privacy is grounded on physical and moral autonomy — the freedom to engage in one’s own thoughts, actions and decisions” (para. 65 (citations omitted)). That statement was endorsed unanimously by this Court in Lavigne, at para. 25.
[51] Further, in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733 (“UFCW”), decided in the context of a statute regulating the use of information by organizations, the objective of providing an individual with some control over their information was recognized as “intimately connected to individual autonomy, dignity and privacy, self‑evidently significant social values” (para. 24). The importance of privacy, its “quasi‑constitutional status” and its role in protecting moral autonomy continues to find expression in our recent jurisprudence (see, e.g., Lavigne, at para. 24; Bragg, at para. 18, per Abella J., citing Toronto Star Newspaper Ltd. v. R., 2012 ONCJ 27, 289 C.C.C. (3d) 549, at paras. 40‑41 and 44; Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751, at para. 59). In Douez, Karakatsanis, Wagner (as he then was) and Gascon JJ. underscored this same point, adding that “the growth of the Internet, virtually timeless with pervasive reach, has exacerbated the potential harm that may flow from incursions to a person’s privacy interests” (para. 59).
[52] Privacy as a public interest is underlined by specific aspects of privacy protection present in legislation at the federal and provincial levels (see, e.g., Privacy Act, R.S.C. 1985, c. P‑21; Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”); Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31; Charter of Human Rights and Freedoms, CQLR, c. C‑12, s. 5; Civil Code of Québec, arts. 35 to 41).[3] Further, in assessing the constitutionality of a legislative exception to the open court principle, this Court has recognized that the protection of individual privacy can be a pressing and substantial objective (Edmonton Journal, at p. 1345, per Cory J.; see also the concurring reasons of Wilson J., at p. 1354, in which “the public interest in protecting the privacy of litigants generally in matrimonial cases against the public interest in an open court process” was explicitly noted). There is also continued support for the social and public importance of individual privacy in the academic literature (see, e.g., A. J. Cockfield, “Protecting the Social Value of Privacy in the Context of State Investigations Using New Technologies” (2007), 40 U.B.C. L. Rev. 41, at p. 41; K. Hughes, “A Behavioural Understanding of Privacy and its Implications for Privacy Law” (2012), 75 Mod. L. Rev. 806, at p. 823; P. Gewirtz, “Privacy and Speech” (2001), Sup. Ct. Rev. 139, at p. 139). It is therefore inappropriate, in my respectful view, to dismiss the public interest in protecting privacy as merely a personal concern. This does not mean, however, that privacy generally is an important public interest in the context of limits on court openness.
[53] The fact that the case before the application judge concerned individuals who were advancing their own privacy interests, which were undeniably important to them as individuals, does not mean that there is no public interest at stake. In F.N. (Re), this was the personal interest that young offenders had in remaining anonymous in court proceedings as a means of encouraging their personal rehabilitation (para. 11). All of society had a stake, according to Binnie J., in the young person’s personal prospect for rehabilitation. This same idea from F.N. (Re) was cited in support of finding the interest in Sierra Club to be a public interest. That interest, rooted first in an agreement of personal concern to the contracting parties involved, was a private matter that evinced, alongside its personal interest to the parties, a “public interest in confidentiality” (Sierra Club, at para. 55). Similarly, while the Trustees have a personal interest in preserving their privacy, this does not mean that the public has no stake in this same interest because — as this Court has made clear — it is related to moral autonomy and dignity which are pressing and substantial concerns.
[54] In this appeal, the Toronto Star suggests that legitimate privacy concerns would be effectively protected by a discretionary order where there is “something more” to elevate them beyond personal concerns and sensibilities (R.F., at para. 73). The Income Security Advocacy Centre, by way of example, submits that privacy serves the public interests of preventing harm and of ensuring individuals are not dissuaded from accessing the courts. I agree that these concepts are related, but in my view care must be taken not to conflate the public importance of privacy with that of other interests; aspects of privacy, such as dignity, may constitute important public interests in and of themselves. A risk to personal privacy may be tied to a risk to psychological harm, as it was in Bragg (para. 14; see also J. Rossiter, Law of Publication Bans, Private Hearings, and Sealing Orders (loose-leaf), s. 2.4.1). But concerns for privacy may not always coincide with a desire to avoid psychological harm, and may focus instead, for example, on protecting one’s professional standing (see, e.g., R. v. Paterson (1998), 1998 CanLII 14969 (BC CA), 102 B.C.A.C. 200, at paras. 76, 78 and 87‑88). Similarly, there may be circumstances where the prospect of surrendering the personal information necessary to pursue a legal claim may deter an individual from bringing that claim (see S. v. Lamontagne, 2020 QCCA 663, at paras. 34‑35 (CanLII)). In the same way, the prospect of surrendering sensitive commercial information would have impaired the conduct of the party’s defence in Sierra Club (at para. 71), or could pressure an individual into settling a dispute prematurely (K. Eltis, Courts, Litigants and the Digital Age (2nd ed. 2016), at p. 86). But this does not necessarily mean that a public interest in privacy is wholly subsumed by such concerns. I note, for example, that access to justice concerns do not apply where the privacy interest to be protected is that of a third party to the litigation, such as a witness, whose access to the courts is not at stake and who has no choice available to terminate the litigation and avoid any privacy impacts (see, e.g., Himel v. Greenberg, 2010 ONSC 2325, 93 R.F.L. (6th) 357, at para. 58; see also Rossiter, s. 2.4.2(2)). In any event, the recognition of these related and valid important public interests does not answer the question as to whether aspects of privacy in and of themselves are important public interests and does not diminish the distinctive public character of privacy, considered above.
[55] Indeed, the specific harms to privacy occasioned by open courts have not gone unnoticed nor been discounted as merely personal concerns. Courts have exercised their discretion to limit court openness in order to protect personal information from publicity, including to prevent the disclosure of sexual orientation (see, e.g., Paterson, at paras. 76, 78 and 87‑88), HIV status (see, e.g., A.B. v. Canada (Citizenship and Immigration), 2017 FC 629, at para. 9 (CanLII)), and a history of substance abuse and criminality (see, e.g., R. v. Pickton, 2010 BCSC 1198, at paras. 11 and 20 (CanLII)). This need to reconcile the public interest in privacy with the open court principle has been highlighted by this Court (see, e.g., Edmonton Journal, at p. 1353, per Wilson J.). Writing extra‑judicially, McLachlin C.J. explained that “[i]f we are serious about peoples’ private lives, we must preserve a modicum of privacy. Equally, if we are serious about our justice system, we must have open courts. The question is how to reconcile these dual imperatives in a fair and principled way” (“Courts, Transparency and Public Confidence – To the Better Administration of Justice” (2003), 8 Deakin L. Rev. 1, at p. 4). In seeking that reconciliation, the question becomes whether the relevant dimension of privacy amounts to an important public interest that, when seriously at risk, would justify rebutting the strong presumption favouring open courts. At paras 56-85 the court considers the issue of a public interest in 'privacy', and this as it relates to the amorphous concept of 'dignity' [starting at para 63] (interestingly, it suggests that the corollary of 'dignity' is embarrassment).
. 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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