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Public Access - Open Court (2)

. Khan v. Law Society of Ontario

In Khan v. Law Society of Ontario (Div Ct, 2022) the Divisional Court considered a motion to seal medical record aspects of an administrative and court appeal file:
[43] With respect to Mr. Khan’s main argument, s. 135 of the Courts of Justice Act [8]states that “all court hearings shall be open to the public”. It is a fundamental tenet and a rule of the Canadian legal system that the administration of justice is open to be seen and that the public, including the media, are not excluded from viewing and reporting on judicial proceedings.[9] Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy.[10]

[44] However, the open court principle admits of exceptions. Section 135 (2) of the Courts of Justice Act. authorizes the court to exclude the public from a hearing “where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public”. Section 137(2) of the Act authorizes the court to order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

[45] Where it is shown that there is a serious risk that the disclosure of highly sensitive personal information would be an affront to the affected person’s dignity and be more than just discomfort or embarrassment, an exception to the open court principle may be justified.[11] Although measured by reference to the facts of each case, the risk to the privacy interest will be serious only where the information that would be disseminated as a result of court openness is sufficiently sensitive such that openness can be shown to meaningfully strike at the individual’s biographical core in a manner that threatens their integrity.[12]

[46] In Sierra Club of Canada v. Canada (Minister of Finance),[13] the Supreme Court of Canada formulated a test for when a sealing order should be granted. Justice Iacobucci stated that a sealing order should only be granted when: (1) the order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (2) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which includes the public interest in open and accessible court proceedings.

[47] The court will engage in a two-step process to determine whether to seal a court file. The first step is to determine whether there is a serious risk to a public interest that can only be addressed by a sealing or non-publication order. Only if the first step is satisfied will the court in the second step determine how the competing interests are to be balanced. There is a high evidentiary burden on a party seeking a sealing order or a redaction order, and the evidence required for an order to be granted will be subject to close scrutiny and must be convincing.[14]

[48] In my opinion, in the circumstances of the immediate case Mr. Khan has satisfied the test for a confidentiality order. The order is necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk, and the salutary effects of the order outweigh the deleterious effects.

[49] The open court principle can yield if the public interest in protecting privacy and confidentiality outweighs the public interest in openness.[15] Where it is shown that there is a serious risk that the disclosure of highly sensitive personal information would be an affront to the affected person’s dignity and be more than just discomfort or embarrassment, an exception to the open court principle may be justified.[16] Although measured by reference to the facts of each case, the risk to this interest will be serious only where the information that would be disseminated as a result of court openness is sufficiently sensitive such that openness can be shown to meaningfully strike at the individual’s biographical core in a manner that threatens their integrity.[17]


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