COURT OF APPEAL FOR ONTARIO
Dawe J.A. (Motion Judge)
BETWEEN
B.E.
Plaintiff/Defendant by Counterclaim (Responding Party/Respondent)
and
O.R.* and John Doe
Defendants/Plaintiffs by Counterclaim (Moving Party/Appellant*)
Marco P. Falco and Kanwar Dhaliwal, for the moving party/appellant
Anna Matas, for the responding party/respondent
Heard: June 15, 2026
REASONS FOR DECISION
1The moving party/appellant, O.R., brings a motion for directions 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. Since the proposed measures would all interfere with the open court principle, to varying extents, they must be justified in accordance with the test in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75.
2B.E. and O.R., who are both adult men, have each accused the other of sexually assaulting them. B.E.’s civil suit against O.R. was successful at trial, while O.R.’s counterclaim against B.E. was dismissed. O.R. is now appealing the trial judgment.
3Both parties agree that I should direct that their names be anonymized and that they should be referred to publicly using initials, as was done in the court below. They also agree that I should make a sealing order over this court’s file, but disagree about the scope of this order. O.R. seeks a further order that the public be excluded from the hearing of the appeal, and a publication ban over this court’s eventual reasons. B.E. does not agree that either of these latter measures are necessary or justified.
4As I will explain, I do not entirely accept either party’s position. Applying the principles in Sherman Estate, I agree that some limits on the open court principle are justified to protect the important public interest of safeguarding B.E. and O.R.’s dignity. However, I conclude that this objective can be largely achieved by an order prohibiting publication of O.R. and B.E.’s names, or any information that would identify them, supplemented by a more limited sealing order than either party has proposed.
5I am not persuaded that an order sealing the entire court file, as requested by O.R., would be necessary or proportionate. I also do not accept B.E.’s more limited proposal that the Appeal Book and Compendium be sealed in its entirety. Rather, I conclude that a sealing order should only be made in relation to the copies of a subset of B.E. and O.R.’s personal medical records that are contained in the Appeal Book and Compendium and the Exhibit Book.
6I agree with the parties that the appeal should be anonymized in the sense that B.E. and O.R. should be referred to by initials in the style of cause and in any materials published by the court. However, I decline to order the redaction of existing documents in the trial record that contains the parties’ names, or includes other information that might reveal their identities. In my view, B.E. and O.R.’s dignitary interests will be adequately protected by an order prohibiting publication of this information.
7For reasons I will explain, I am also not satisfied that it is necessary or proportionate to exclude the public from the hearing of the appeal.
8Finally, I decline O.R.’s request that I make an anticipatory order banning publication of this court’s as-yet unwritten reasons for judgment, for three different reasons. First, this request is premature, since the panel that hears O.R.’s appeal will very likely be able to craft reasons that do not reveal the parties’ identities. Second, there are important policy reasons that weigh against prohibiting publication of this court’s decisions: see R. v. D.V., 2025 ONCA 67, at paras 29-37. Third, the protective orders I am making should be understood as interim orders that will only remain in effect until the hearing of the appeal, or until such time as they are set aside or varied by a judge or a panel of this court. It will be up to the panel that hears this appeal to decide whether an order banning publication of its reasons is necessary and proportionate under the Sherman Estate test.
A. Background Facts and Procedural History
1. Proceedings in the trial court
9In July 2018, the respondent, B.E., commenced a civil action against the appellant, O.R., and an unknown second male (“John Doe”), seeking damages for an alleged sexual assault he claimed had occurred in September 2015.
10O.R. defended the claim. He denied that he had sexually assaulted B.E. and also counterclaimed, alleging that on the date in question it was actually B.E. who had sexually assaulted him. O.R. also denied that the man identified in B.E.’s pleadings as “John Doe” existed. (No such person was ever identified, and “John Doe” thus did not participate in the trial proceedings and is not a participant in O.R.’s appeal.)
11On December 23, 2021, Myers J. made an order amending the style of cause to refer to the parties using initials, and directing that documents already in the court file could be replaced with initialized versions. He also made an interim sealing order over the court file, pending a motion on notice to the media. In a further order made on January 28, 2022, Myers J. continued the sealing of B.E.’s medical records until trial.
12On March 23, 2022, Koehnen J. ordered that any medical records O.R. intended to rely on for motions were also to be sealed and anonymized.
13The trial started on November 14, 2023. On the first day, the trial judge, C. Brown J., made an oral ruling “that all documentation adduced as evidence in this case will be sealed”, and that “the courtroom will also be sealed so that documentation can be left here”. This order was never reduced to writing or formally issued.
14The trial judge appears to have later interpreted her sealing order as extending more broadly to also capture the testimony of witnesses. On January 24, 2024 she made an order varying her earlier sealing order to permit O.R. to obtain a transcript of B.E.’s trial testimony. Term 1 of her order stated:
The Order of the Honourable Madam Justice C. Brown made on November 14th, 2023 sealing the court proceedings including testimony, documents and exhibits is hereby varied for the sole purpose of providing a digital copy of the transcript of the testimony of BE to the transcription service ordering the transcripts. [Emphasis added.]
15The trial judge gave her judgment on November 12, 2024. She found in favour of B.E., awarding him $300,000 in general and aggravated damages, plus pre-judgment interest; $250,000 in punitive damages; and lesser amounts for income loss and past and future care. She dismissed O.R.’s counterclaim. In a subsequent order made on January 17, 2025, she awarded costs to B.E.
16O.R. is appealing both the trial judgment and the costs order. On February 18, 2025 the trial judge made a further consent order varying her November 14, 2023 sealing order to permit the parties to order the trial transcripts for the appeal. As with her January 24, 2024 variation order, this order characterized her November 14, 2023 sealing order as “sealing the court proceedings including testimony, documents and exhibits”. The trial transcripts that have been included in O.R.’s Appeal Book and Compendium are marked “In Camera/Sealed” on their front pages.
17A disagreement later arose between counsel over whether the trial judge’s November 14, 2023 sealing order extended to her reasons for judgment. Part of the reason for this disagreement was that no transcript of the trial judge’s November 14, 2023 oral ruling was yet available. O.R. contended that the sealing order should be understood as extending to the trial judge’s reasons for judgment. He argued that the reasons, despite being initialized, contain personal details about both O.R. and B.E. that would enable people to identify them.
18On January 6, 2026, Koehnen J. conducted a case conference. O.R., who by this time was unrepresented, argued that no additional transcripts – including the transcript of the November 14, 2023 proceedings – should be ordered produced. Koehnen J. disagreed, and directed that B.E. was permitted to order the November 14, 2023 transcript. This transcript has now been produced.
19Koehnen J. also addressed the issue of publication of the trial judge’s reasons, stating:
The final issue that arose is the defendant’s concern that the reasons for judgment will be published on or otherwise. The defendant says that the plaintiff has sought that relief from other judges and that such relief has been denied. Copies of those other judges’ endorsements are not before me.
Given the concerns that even publishing reasons for judgment containing the initials of the parties would disclose their identity, the possibility that the issue is res judicata and the current uncertainty over the precise terms of Justice Brown’s sealing order, the most prudent course of action for purposes of today is to direct that the reasons for judgment not be published on or otherwise pending further order of the court. I make that order strictly as an interim provision without having considered or addressed the merits of the issue. The material I had before me today on this issue and the time available today simply did not permit me to address the issue fully and properly. [Emphasis added.]
20Counsel advised me that there have not yet been any further proceedings before Koehnen J., and agree that his interim publication ban over the trial judge’s reasons for judgment remains in effect.
2. Appellate proceedings
21O.R. is now ready to perfect his appeal. However, he wanted to bring a motion for an order sealing the court file and granting him other forms of relief before he filed the materials necessary to perfect the appeal, including his factum, the Appeal Book and Compendium, and the Exhibit Book: rr. 61.09,61.10, 61.10.1, and 61.11, Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
22On May 13, 2026, I made a case management direction permitting the appeal to be scheduled for hearing on December 16, 2026, despite it not yet having been perfected. This was done to allow O.R. to bring the motion that is now before me on proper notice to the media.
23I heard O.R.’s motion as scheduled on June 15, 2026. As part of his motion record, O.R. filed under seal a complete copy of the Appeal Book and Compendium and his factum, along with a copy of the table of contents of his five-volume Exhibit Book. His motion record also contains a copy of B.E.’s responding factum on the appeal.
24Advance notice of the motion hearing was posted on the court’s website, but no media organizations responded or appeared at the hearing.
B. Positions of the parties
25The parties agree that the circumstances of this case warrant some interference with the open court principle, pursuant to the test established in Sherman Estate. However, they disagree about the extent of the interference that is necessary and proportionate.
26Both parties agree that the Appeal Book and Compendium and Exhibit Book should be ordered sealed, and that the anonymization of the parties by using initials should continue.
27However, O.R. also seeks:
i) A broader sealing order covering “all documents filed with respect to the … Appeal”;
ii) an order “that the hearing of this Appeal be conducted in camera and not be open to the public at large”; and
ii) an anticipatory order “sealing and banning the publication of the Reasons for Decision of the Appeal and Reasons Regarding Costs of the Appeal (if any)”.
B.E.’s position is that O.R.’s proposed sealing order is overbroad, and that the last two orders he seeks are not justified.
C. Analysis
1. The scope of this motion
28I find it useful at the outset to set out two issues that are not before me on this motion.
29First, I am not sitting in review of the trial judge’s November 14, 2023 sealing order. Assuming that this was a “final order”, it may be appealed to this court: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b) (“CJA”). However, only a panel of this court has jurisdiction to set aside or vary the trial judge’s order: CJA, s. 7(1).
30Second, I am not deciding whether the trial judge’s reasons for judgment can be published. The interim publication ban over her reasons made by Koehnen J. on January 6, 2026 remains in effect, and I have no jurisdiction to review or vary this interim order.
31The sole question that is properly before me on this motion is the extent to which the Sherman Estate principles justify sealing this court’s file and/or making other protective orders that are directed at safeguarding important public interests. The sealing order made by the trial judge does not apply to this court’s file, nor does it bind me: Law Society of Ontario v. AA, 2026 ONCA 47, at paras. 179-80. I must make my own assessment of the relevant circumstances and arrive at my own conclusions about what is necessary and proportionate.
32Finally, I reiterate that the orders I make should be considered interim orders that will only remain in effect until the appeal is heard, or until such time as they are set aside or varied on a further motion. It will be up to the panel that hears the appeal to determine whether these orders should be continued or varied.
2. The governing principles
33Court proceedings and court files are presumptively open to the public. As Kasirer J. noted in Sherman Estate, at para. 30, “[c]ourt openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy”.
34However, the open court principle is not absolute. A party seeking to limit court openness must establish that: (i) court openness poses a serious risk to an important public interest; (ii) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk, and (iii) as a matter of proportionality, the benefits of the proposed order outweigh its negative effects: Sherman Estate, at para. 38.
3. Serious risk to an important public interest
35As Kasirer J. observed in Sherman Estate, at para. 31, “some degree of privacy loss — resulting in inconvenience, even in upset or embarrassment — is inherent in any court proceeding open to the public”. A litigant or witness’s personal privacy interests will only justify interfering with court openness in situations where publicly disclosing “highly sensitive” private information about the person would compromise their dignity: para. 33. Kasirer J. explained at para. 35:
[T]he applicant must show on the facts of the case that, as an important interest, this dignity dimension of their privacy is at “serious risk”. For the purposes of the test for discretionary limits on court openness, this requires the applicant to show that the information in the court file is sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity.
36The parties agree that the materials that will form part of this court’s file once this appeal has been perfected include three different categories of information that meet these conditions.
37First, B.E. and O.R. each allege that they were sexually assaulted by the other. Information revealing that someone has been the victim of a sexual assault is a well-established category of “sensitive personal information that, if exposed, could give rise to a serious risk”: Sherman Estate, at para. 77; see also R. v. T.W.W., 2024 SCC 19, 492 D.L.R. (4th) 193, at para. 74; Law Society of Ontario v. AA, at paras. 213-17.
38In my view, it makes no difference that the trial judge accepted B.E.’s evidence that he was sexually assaulted by O.R., but rejected O.R.’s claim that he was sexually assaulted by B.E. The correctness of her factual findings are disputed in this appeal. In any event, as B.E. notes in his factum, “[s]exual assaults are severely underreported and there is a public interest in making the justice system more accessible to victims”. This public interest would be undermined if sexual assault complainants were viewed as losing protection over the public disclosure of their identities when a trial judge rejects their evidence on a balance of probabilities.
39Second, the trial record contains references to both B.E. and O.R.’s respective sexual orientations. This is a second well-established category of sensitive private information that is capable of meeting the first branch of the Sherman Estate test: see Sherman Estate, at para. 77; R. v. Paterson (1998), 1998 CanLII 14969 (BC CA), 122 C.C.C. (3d) 254 (B.C. C.A.), at paras. 76, 78 and 87-88. In my view, it does not matter that the accuracy of some of this information is disputed. False claims about highly personal matters such as a person’s sexual orientation can adversely affect that person’s dignity just as much as true claims.
40Third, the Appeal Book and Compendium and the Exhibit Book contain extensive copies of documents taken from B.E. and O.R.’s personal medical records. Some of these records contain “information related to stigmatized medical conditions”: Sherman Estate, at para. 77. Moreover, as in R. v. Starnaman, 2026 ONCA 183, at para. 63, the medical documentation in the Exhibit Book apparently “spans decades and includes highly private information about collateral medical diagnoses, medications, and treatment”.
41I agree with the parties that these three categories of documents all meet the Sherman Estate threshold: they all contain information that is “sufficiently sensitive” such that “there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity”: at para. 35.
4. The protective orders requested by the parties
42The 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.
43In 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.]
44O.R. is seeking all four forms of protective order: namely, a sealing order; an anonymization order; an order that the appeal be heard in camera; and a prospective publication ban over this court’s future reasons for judgment on the appeal. In contrast, B.E. only asks for sealing and anonymization orders, and the sealing order he seeks is more limited than that requested by O.R. The necessity and proportionality of any of these proposed orders obviously depend in part on my decision about whether other protective orders can and should be made: Sherman Estate, at para. 38.
a. Information bearing on the parties’ sexual histories and/or orientations
45I will start by considering the first two categories of sensitive personal information discussed above, namely: (i) information bearing on B.E. and O.R.’s claims that they were sexually assaulted; and (ii) information, whether accurate or not, that reveals or implies details about their respective sexual orientations.
46Although this is a civil appeal, similar concerns about protecting the dignitary interests of sexual assault complainants frequently arise in criminal sexual offence appeals, which make up a very large part of this court’s docket.
47The Criminal Code, R.S.C. 1985 c. C-46, gives criminal sexual offence complainants various forms of privacy protection. Most notably, s. 486.4(1) and (2) requires judges presiding over sexual offence preliminary inquiries or trials to order publication bans over any information that “could identify the victim or a witness”, whenever such orders are requested by “the victim, the prosecutor or any such witness”. These orders remain in force after the trial is completed.
48However, the Criminal Code does not require all such proceedings to be conducted in camera, and court files in criminal sexual offence trials are not routinely ordered sealed. Complainants and witnesses typically testify in open court, and they are commonly referred to by name in the courtroom, in court documents, and in documents that are filed as exhibits. In short, the statutory prohibition on publishing information that could reveal complainants’ and witnesses’ identities is generally treated as striking an appropriate balance between the public interest in protecting their dignity and the competing public interests that are served by having open courts.
49In nearly all criminal sexual offence appeals that reach this court, there is already a s. 486.4 publication ban in effect. As a result, this court is rarely called on to make a new publication ban order. Rather, the court typically complies with the existing publication ban by anonymizing the names of sexual offence complainants and other persons closely associated with them in published documents, including reasons for decision and reasons for judgment. Judges of this court are also adept at crafting reasons that avoid revealing any personal information that might identify such persons indirectly. However, this court does not routinely order that its files in sexual offence appeals be sealed, even when these files include documents containing information that directly or indirectly reveals the complainant or witnesses’ identities. Moreover, nearly all sexual offence appeals are heard in open court.
50The Criminal Code has special rules for specific defence applications in sexual offence trials that raise heightened privacy concerns: namely, applications under s. 278.3 for the production of private records; and applications under s. 278.92 to determine the admissibility of a complainant’s prior sexual activity evidence and/or private records in the possession of the defence. These applications must be conducted in camera, and are subject to special statutory publication ban provisions: see Criminal Code, ss. 278.4 to 278.7, 278.9 and ss. 278.93 to 278.95.
51However, the Supreme Court of Canada has interpreted these statutory provisions as not applying to appeals: T.W.W., at paras. 55-67. Appellate courts still have a discretionary implied authority to order publication bans and make other protective orders, including sealing orders and directions that hearings be conducted in camera, but O’Bonsawin J. cautioned that “a court’s discretion to make orders that limit court openness is not to be exercised lightly”: T.W.W., at paras. 68-69; see also paras. 58, 77. She also emphasized some of the important contextual differences between trial proceedings and appeals, including the fact that appeals are conducted against the backdrop of whatever protective orders were made in the courts below: T.W.W., at paras. 70, 77.
52Consistent with T.W.W., this court does not routinely hold criminal sexual offence appeal hearings in camera, even when the trial court’s decision on an application under s. 278.3 or s. 278.92 is in issue: see, e.g., R. v. J.O.P., 2025 ONCA 121, at paras. 7-11.
53In my view, this court’s standard practices in criminal appeals involving sexual offences, reinforced by the Supreme Court of Canada’s guidance in T.W.W., have important implications for where the appropriate balance should be situated in O.R.’s civil appeal.
54B.E. and O.R.’s privacy and dignitary interests as civil sexual assault complainants strike me as indistinguishable from those of criminal sexual offence complainants, who have the same legitimate concerns that their dignity will be affronted if their identities become public. As I have discussed, in the context of criminal appeals these concerns are nearly always treated as adequately addressed by the existence of a statutory publication ban. B.E. and O.R.’s concerns, and the public interest in protecting their privacy, would in my view be similarly well-protected in this civil appeal if I were to make a discretionary common law order, analogous to an order under s. 486.4 of the Criminal Code, prohibiting publication of their names, and of any other information that would reveal their identities.
55I accept that making a sealing order would give B.E. and O.R. even more protection. The Appeal Book and Compendium and the Exhibit Book contain numerous documents that refer to them by their full names, as well as many more documents that contain personal details about them, such as their addresses, the name of the community in which they live, their professions and work histories, and their educational backgrounds. I agree with counsel that it would not be difficult for anyone – especially someone who knows B.E. and/or O.R. personally – to piece this information together and determine their identities. However, the same can be said of the court files in nearly all criminal sexual offence appeals, which are not routinely ordered sealed.
56The 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.
57In 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.
58In 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.
59As 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.)
60I 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.
61I 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.
62I 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”.
63However, 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.
64In 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.
65To 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.
66Finally, 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.
67O.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”.
68However, 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.
69In 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.
70O.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.
71I 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.
b. Information related to the parties’ medical records
72I turn now to the parties’ medical records, which in my view require a special analysis.
73Volumes 1 and 2 of the five-volume Exhibit Book appear to contain approximately 675 pages of what are described as B.E.’s medical, pharmacy, and Ontario Health Insurance Plan (“OHIP”) records, and a further 400 pages of similar records for O.R. More documents that also appear to be medical records are interspersed throughout the rest of the Exhibit Book, although it is not always clear from the table of contents to whom they relate.
74Some of the medical records in the Exhibit Book are also reproduced in the Appeal Book and Compendium.
75As Sossin J.A. noted in S.E.C. v. M.P., 2023 ONCA 821, at para. 75:
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.
76One relevant consideration is the sheer volume and timespan covered by the records at issue. As Thorburn J.A. noted in Starnaman, at para. 63:
With respect to the important public interest at stake, the parties submit, and we agree, that the detailed medical information – which spans decades and includes highly private information about collateral medical diagnoses, medications, and treatment – contained in the exhibits strikes at the appellant’s biological core in a way that threatens his dignity. Sensitive personal information, including information about stigmatized medical diagnoses, has been recognized as information which, if disclosed, could give rise to a serious risk to the public interest in protecting dignity. [Citation omitted.]
77The medical records in the Appeal Book and Compendium were provided to me, but not the much larger volume of medical records contained in the Exhibit Book.
78Having reviewed the medical records in the Appeal Book and Compendium, most of which relate to B.E., I agree with counsel that many of these records include documents that contain information “about stigmatized medical diagnoses”, or information about highly private matters such as the subject’s sexual history, sexual orientation and/or mental health. However, I note that some of this sensitive medical information bears directly on what appears to be a central disputed issue in the appeal: namely, whether the evidence supported the trial judge’s finding that B.E. contracted a sexually transmitted disease because of the alleged sexual assault by O.R.
79Other records are less sensitive, but they also appear to have little or no discernible relevance to any issues likely to be raised in the appeal.
80I have not reviewed the much more voluminous medical records contained in the Exhibit Book, since these were not included in the motion record. However, based on the descriptions in the table of contents, the Exhibit Book appears to contain copies of extensive medical documentation for both parties over long time periods. It is not clear from the table of contents what years B.E.’s records span, but O.R.’s records are noted as including documents “from 2007 to 2023”. It may well be that not all of these documents contain especially sensitive medical information. Nevertheless, to the extent that these documents provide snapshots of B.E. and O.R.’s medical history over many years, I am satisfied they have the potential to reveal information about the parties’ “biological core in a way that threatens [their] dignity”: Starnaman, at para. 63.
81I am accordingly satisfied that the medical records in the Appeal Book and Compendium and the Exhibit Book meet the threshold stage of the Sherman Estate test.
82However, I am not persuaded that a sealing order would be necessary or proportionate in respect of the records containing information that bears directly on O.R.’s grounds of appeal.
83One of O.R.’s grounds of appeal is that the trial judge made palpable and overriding errors in uncritically accepting B.E.’s evidence that he must have contracted a sexually communicable infectious disease – specifically, chlamydia – from O.R. In my view, it would do significant harm to the open court principle to prevent the public and the media from examining evidence that is directly relevant to this ground of appeal. Sealing these records would also do little or nothing to advance B.E. or O.R.’s dignity interests, since the contents of these documents are discussed in other documents that will remain unsealed, including the trial transcripts, the trial judge’s reasons for judgment, and the parties’ factums. I am satisfied that the publication ban I propose to make over information that would publicly disclose B.E. and O.R.’s identities will be adequate to prevent any serious affront to their dignity.
84O.R. also challenges the trial judge’s damages award, which was based in part on her conclusion that B.E. had suffered psychological harm. The medical records in the Appeal Book and Compendium that contain information about B.E.’s mental health history are therefore relevant to this ground of appeal. However, the highly personal details contained in these records do not appear to be particularly germane to this ground. Significantly, these details are not summarized at length either in the trial judge’s reasons or in the parties’ factums. On balance, I am satisfied that the public interest in learning these specific details is relatively low. I conclude that the balance of competing public interests tips in favour of sealing these particular records.
85I am also satisfied that it is necessary and proportionate to seal the more voluminous medical records in the Exhibit Book. While it might be possible to edit these records to redact particularly sensitive but irrelevant information, I conclude that this would not be a “reasonably alternative measure” in the circumstances of this case: Sherman Estate, at para. 38. I reach this conclusion for two main reasons.
86First, the sheer volume of the records in the Exhibit Book would make this a challenging and time-consuming task. Second, I am satisfied that O.R. selected the records that were relevant to his grounds of appeal and included them in the Appeal Book and Compendium, and that the remaining records in the Exhibit Book have little or no relevance to the issues in dispute on the appeal. Any interest the public might have in reviewing medical records containing only irrelevant information strikes me as low.
87On balance, I am persuaded that it is appropriate to order that the medical records contained in the Exhibit Book be sealed.1
D. Disposition
88In the result, the motion is granted in part.
89An order will go, pursuant to my discretionary authority, prohibiting publication of B.E. and O.R.’s names, or any information that would identify them.
90The appeal shall continue to use an initialized style of cause, and the parties’ names will be anonymized in court communications and publications. However, documents in the trial file that have not already been initialized shall be filed with this court without further redaction or editing.
91This court’s file shall remain unsealed, with the exception of: (1) the medical records in the Appeal Book and Compendium, other than those that directly bear on O.R.’s first ground of appeal (i.e., “the chlamydia issue”) and (2) the medical records in the Exhibit Book. These medical records shall be extracted from the Appeal Book and Compendium and from the Exhibit Book and filed separately under seal. (For clarity, these sealed documents shall continue to be listed in the Appeal Book and Compendium and Exhibit Book table of contents). If counsel are unable to agree on the documents that are to be sealed, they may schedule a conference call with me.
92I decline to make an order directing that the public be excluded from the hearing of the appeal.
93All of these orders are to be viewed as interim orders that will remain in force up to the hearing of the appeal, at which time it will be up to the panel that hears the appeal to determine whether they should be extended or varied. They may also be varied or set aside prior to the hearing by further order of a judge or panel of this court.
94Finally, since Koehnen J. has specifically ordered that the trial judge’s reasons for judgment may not be published, I am not addressing the separate question of whether the publication of her reasons in unedited form would be contrary to the publication ban that I am now ordering. If Koehnen J.’s interim publication ban order is later varied or set aside, the parties may schedule a further motion before me to address the issue of whether the trial judge’s reasons require editing before they may be published.
95I have declined to make most of the specific protective orders requested by O.R. However, the sealing order I am making is also substantially narrower than the order requested by B.E., and the main protective order that I am making – a publication ban order – is one that was not requested by either party. In these circumstances, I decline to award either party their costs of this motion.
“J. Dawe J.A.”
Footnotes
- I am mindful that some of the medical records in the Exhibit Book are the same records in the Appeal Book and Compendium that I am declining to order sealed. However, it does no harm to the open court principle to include these documents in the sealing record relating to the Exhibit Book, since copies of these same records will be publicly accessible in the Appeal Book and Compendium.