Court File and Parties
DIVISIONAL COURT FILE NO.: 469/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Christopher ricard, Applicant/Responding Party
AND:
the university of windsor and Jane doe, Respondents/Moving Party
BEFORE: Favreau J.
COUNSEL: Al Formosa and Sylvain Rouleau, for the Moving Party, the University of Windsor
Alexandra Cardela, for the Responding Party, Christopher Ricard
Gregory Ko, for the Responding Party, Jane Doe
HEARD at Toronto (by videoconference): September 1, 2021
ENDORSEMENT
1This endorsement addresses a motion brought by the University of Windsor for a publication ban and sealing order and confirms the schedule for the application for judicial review.
Publication ban and sealing order
2The applicant, Christopher Ricard, seeks to judicially review a decision by a University Adjudicator finding that he committed sexual assault against the respondent Jane Doe.
3The Court has already granted an anonymization order protecting the identity of Jane Doe. The University now seeks a publication ban of any information that could identify Jane Doe and others who have made complaints against the applicant in the context of the proceedings before the University Adjudicator. In addition, the University seeks to seal the complete court record.
4The other parties to the application support the relief sought on the motion.
5The press was given notice of the motion and did not respond or participate on the motion.
6I am satisfied that this is an appropriate case for a publication ban and sealing order and that it meets the recently restated test in Sherman Estate v. Donovan, 2021 SCC 25. As held by the Supreme Court, the test requires the court to find that:
a. Court openness poses a serious risk to an important public interest;
b. The order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and
c. As a matter of proportionality, the benefits of the order outweigh is negative effects.
7With respect to the first part of the test, in Sherman Estate, the Supreme Court recognized that preservation of an individual’s dignity is a matter of public interest. At para. 75, the Court held that a person’s dignity can be at risk if sensitive personal information relevant to core aspects of that person’s life are made public through court proceedings. At para 77, the Court specifically identified “subjection to sexual assault or harassment” as the type of personal sensitive information that, if exposed, could pose a serious risk to a person’s dignity. Keeping the identity of complainants confidential in the context of cases involving allegations of sexual assault is also consistent with sealing orders and publication bans made in civil cases that predate the Sherman Estate decision. For example, as held by Faieta J. in Fedeli v. Brown, 2020 ONSC 994 (Sup. Ct.), at para. 9:
The privacy interests of a person who makes an allegation of sexual assault or sexual harassment in a civil proceeding is high, particularly when she has not initiated the civil proceeding. A complainant may be subject to unnecessary trauma and embarrassment, both for herself and her family, if she is identified. Without protection of her privacy interests, a person who has been sexually assaulted or sexually harassed may be unwilling to come forward. Further, the failure to afford such protection to a person alleging sexual assault or sexual harassment may deter other persons from coming forward to report sexual misconduct. Such interests are recognized and protected in a criminal proceeding as s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, provides that an order banning publication of any information that could identify a victim of sexual assault is mandatory if sought by the Crown or victim. In my view, the policy reflected by s. 486.4 of the Criminal Code is equally applicable in these civil proceedings.
8Accordingly, I am satisfied that there is a public interest in protecting the confidentiality of Jane Doe and other complainants involved in this case and, therefore, the order requested in this case meets the first part of the Sherman Estate’s test.
9I am also satisfied that the order meets the two other parts of the test. The order is necessary to prevent the risk that Jane Doe and the other complainants will be publicly identified. With one small exception addressed below, the relief sought is not overly broad. Finally, the benefits of the order sought outweigh its negative effects. Protecting the privacy interests of Jane Doe and other complainants far outweighs any minimal interest the public may have in knowing their identities.
10As discussed with counsel during the motion, the sealing order sought is overly broad as it would include all documents filed on the application. As conceded by the parties during argument, the Notice of Application for Judicial Review as anonymized does not provide any information that would identify Jane Doe or other complainants. Accordingly, the motion is granted subject to excluding the Notice of Application for Judicial Review from the scope of the order.
11The parties are to revise the proposed draft order to ensure that the Notice of Application for Judicial Review is not captured by the sealing order. In addition, the order is to be revised to reflect that materials are to be filed electronically rather than in paper form in this case. The order should state that the sealed documents are not to be uploaded to CaseLines but, rather, are to be provided to the Court by email through a password protected secure document sharing platform.
12The revised draft order is to be sent to the Court in Word format by Friday, September 3, 2021. As long as the Court has no concerns with the specific wording of the order, the order will be signed and issued.
13None of the parties sought costs on the motion and accordingly no costs are awarded.
Scheduling of the application for judicial review
14The directions below address the scheduling of the application for judicial review.
15The application for judicial review will be heard by a Toronto panel of the Divisional Court on January 13, 2022.
16The parties are to serve materials electronically in accordance with the following schedule:
a. The University is to serve its record of proceedings by September 20, 2021;
b. The applicant is to serve his materials by October 12, 2021; and
c. The respondents are to serve their responding materials by November 5, 2021.
17All materials are to be filed with the Court and uploaded to CaseLines in accordance with the directions below by December 17, 2021.
18The parties will receive a CaseLines email invitation in advance of the hearing. Documents are to be uploaded to CaseLines in accordance with the directions in section D.4 of the February 18, 2021 Notice to the Profession – Divisional Court:
https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/div-ct-feb2021/
19As indicated above, all sealed documents are to be sent to the Court via email using a secure password protected document sharing platform
20The parties are also required to comply with the filing and fee payment requirements in section D.5 of the Notice to the Profession.
21The parties are reminded to hyperlink the indexes to all electronic documents.
22The parties are also reminded to advise the court of any agreement on costs or upload their costs outlines to CaseLines at least one day before the hearing.
23If the parties believe there are points on which they need direction that are not reflected in this endorsement, they should advise the court by email as soon as they can.
Favreau J.
Date: September 2, 2021