Court File and Parties

CITATION: Law Society of Ontario v. A.A., 2024 ONSC 3102 DIVISIONAL COURT FILE NO.: 204/24 DATE: 2024-05-31

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Law Society of Ontario, Applicant/Moving Party AND: A.A., Respondent

BEFORE: Davies J.

COUNSEL: Amanda Pinto and Andrea Luey, for the Applicant/Moving Party James Melnick, for the Respondent Cynthia Pay, for the Law Society Tribunal

HEARD: May 17, 2024

Endorsement

A. Overview

[1] In 2019, AA applied to be licensed as a lawyer by the Law Society of Ontario. The Law Society launched an investigation into AA’s good character because it had evidence that AA sexually abused several children in 2009. Prior to AA’s good character hearing, he obtained an order from the Law Society Tribunal anonymizing his name as well as the names of his former spouse and their children. The order also prohibits anyone from publishing, broadcasting or transmitting any identifying information about AA, his former spouse or their children.

[2] On July 25, 2023 the Law Society Tribunal found that AA is of good character but imposed a condition on his license: he is not permitted to meet alone with minor children.

[3] The Law Society unsuccessfully appealed the Tribunal’s decision that AA is of good character to the Law Society Appeal Division. The Law Society did not appeal the anonymization order.

[4] The Law Society has filed an application for judicial review of the Appeal Division’s decision. On May 9, 2024, I stayed the decision of the Appeal Division pending the hearing of the Law Society’s application.

[5] AA has brought this motion for a declaration that the Law Society’s anonymization order applies to the proceedings in this court. In the alternative, he seeks an order from this court that his name, the name of his former spouse and the names of his children be anonymized in the style of cause and materials filed on the Law Society’s judicial review application.

[6] The Law Society takes the position that the Tribunal’s anonymization order does not apply to the proceedings in this court. The Law Society does not oppose an order being made anonymizing the names of AA’s former spouse and children and prohibiting any information that would tend to identify them. However, the Law Society argues there has been a material change in circumstances since the Law Society Tribunal made its anonymization order and such an order is no longer justified.

[7] For the following reasons, I grant a temporary order anonymizing AA’s name, the name of his former spouse and the name of their children in any Court materials filed and in any pre-hearing rulings or directions. I also grant a temporary order prohibiting anyone from publishing, broadcasting or transmitting any identifying information about AA, his former spouse or their children. My order will remain in effect just until the end of the oral hearing of the Law Society’s judicial review on its merits.

B. Does the Law Society Tribunal’s anonymization order apply to the Divisional Court proceedings?

[8] AA argues the order of the Law Society Tribunal applies to the proceedings in this court and, as a result, he was not required to bring a motion for an anonymization order.

[9] In support of his position, AA relies on the decision of this court in Nahas v. Health Professions Appeal and Review Board, 2021 ONSC 6940. In that case, a complaint was filed against Dr. Nahas with the College of Physicians and Surgeons of Ontario. The College investigated the complaint and decided not to initiate disciplinary proceedings but decided Dr. Nahas should be cautioned. Dr. Nahas sought a review of the College’s decision at the Health Professions Appeal and Review Board. The Board made an order during its hearing prohibiting the disclosure of parts of the Record to the parties. The Board ultimately upheld the College’s decision and Dr. Nahas sought judicial review of that decision in the Divisional Court. The Board brought a motion in this court for an order sealing the same portions of the Record that were sealed below. The College of Physicians and Surgeons supported the Board’s motion and counsel for the doctor did not oppose the motion. The complainant objected to information about Dr. Nahas being subject to a sealing order. Justice Corbett granted the sealing order. He held that it was appropriate to grant a parallel sealing order in this Court because until the Board’s order was varied or set aside, it remained in effect. He noted that the sealing order he made was without prejudice to any appeal or application for judicial review in respect of the sealing order made below. However, Justice Corbett noted that none of the parties objected to the non-disclosure order made by the Board and this court will generally not permit a party to object to a non-disclosure order for the first time on an appeal or judicial review application.

[10] The Law Society, on the other hand, argues that the Tribunal’s order does not apply to the proceedings in this court and AA is required to bring a motion for an anonymization order.

[11] In support of its position, the Law Society relies on G.-L. v. OHIP (General Manager), 2014 ONSC 5392. In that case, G.-L. appealed a decision of the Health Services Appeal and Review Board denying her funding to go out of the country for surgery. G.-L. filed her appeal using her initials without seeking an order from this court. The panel hearing G.-L.’s appeal held that a party must obtain an order from this court before using initials or a pseudonym even if an anonymization order was made in the proceedings below. The panel found that the Board’s order applies only to the proceedings before the Board and does not apply to any proceedings before the Divisional Court, which are governed by the Rules of Civil Procedure. The panel noted that Rule 14.06(1) of the Rules of Civil Procedure requires the title of proceedings on all court documents to contain the names of all parties. The panel held that a party can only use initials or a pseudonym if a court order to that effect is made.

[12] In my view, the decisions in Nahas and G.-L. are not inconsistent. In both, the Court held that an order is required in this court before information relevant to an appeal or judicial review application can be sealed or anonymized, even if a similar order was made by the tribunal below.

[13] The Law Society Tribunal’s order is still in effect until it is varied or set aside. However, that anonymization order does not apply to the proceedings in this court. AA was required to bring a motion for an order anonymizing his name, his former spouse’s name and the names of their children.

[14] In most cases, the parties should be able to resolve issues about sealing orders or anonymization orders on consent if the order sought has the same terms as the order below. There will, however, be the odd case where circumstances have changed since the tribunal below made its order and it may not be appropriate for this court to make a similar order. The Law Society argues this is one of those cases.

[15] Before considering the merits of AA’s motion, I want to comment on procedure the Law Society followed in this case. The Law Society filed its application for judicial review with AA’s name anonymized in the style of cause consistent with the order of the Law Society Tribunal. The Law Society did not disclose the names of any of the other parties that are protected by the anonymization order below in its Notice of Application for Judicial Review. When the Law Society filed its Notice, it alerted the Court to the fact that there was a dispute about whether the anonymization order below applies to the court filing and, if not, whether an anonymization order should be made by this court. Through the case management process, a date was scheduled for this motion to be heard and an interim anonymization order was made pending the release of these reasons.

[16] I commend the Law Society for its careful approach. It would have been inappropriate for the Law Society to file a Notice (or any other publicly available document) with AA’s full legal name or the names of the other parties protected by the anonymization order below before giving AA an opportunity to bring a motion for an order protecting their identities in this court. Despite my ruling that the anonymization order below does not apply to the proceedings in this court and that a court order is required, appellants/applicants who know the respondent will want to bring a motion for an anonymization order or a sealing order should not take procedural steps that will render such a motion moot. There are other ways to achieve the same objective. For example, the Law Society could have requested a case conference before filing its Notice to get the Court’s directions. If the Law Society had drafted the Notice with AA’s legal name, it could have sought an interim order sealing pending the hearing of the anonymization order. Whatever procedure is adopted, it must protect the interests of those who are required to bring an anonymization motion until that motion can be heard.

C. Should an anonymization order be made?

[17] Public access to court proceedings and court records is a hallmark of our democracy. Openness of the court protects the integrity of the process. It is crucial to maintaining public confidence in our legal system. The openness of our courts is also inextricably linked to freedom of expression, which is protected by s. 2(b) of the Charter: Vancouver Sun (Re), 2004 SCC 43 at paras. 23 to 25, Canadian Broadcasting Corp v. New Brunswick (Attorney General), [1996] 3 SCR 480 at paras. 17 to 22.

[18] An anonymization order is an exception to the open court principle. The burden is, therefore, on AA to establish the following:

a. Complying with the open court principle and publishing his name would pose a serious risk to an important public interest;

b. The order sought is necessary to prevent the identified risk and no alternative measure is available; and

c. As a matter of proportionality, the benefits of the order outweigh its negative effects.

[19] It is only if all three criteria are met that I can exercise my discretion to limit the application of the open court principle and anonymize AA’s name: Sherman Estate v. Donovan, 2021 SCC 25 at para. 38.

a. Serious Risk to an Important Public Interest

[20] AA is not seeking an anonymization order to protect his own privacy. Rather, he is seeking the order to protect his children’s privacy and to protect his children from the trauma that will arise from the publication of his name.

[21] AA admits that on three occasions over a two-month period in 2009, he sexually abused several children. One of the victims of his abuse was his child. This abuse took place in another country and AA has never been charged criminally.

[22] AA and his former spouse have four children, some of whom are still under the age of 18. AA and his former spouse have not told their children about what happened in 2009. AA argues that publicizing his name will result in their children finding out about the abuse, which will have a traumatic impact on them.

[23] The Law Society argues there is insufficient evidence for me to find that disclosing the abuse to AA’s children will cause them serious harm. I disagree.

[24] I have considered the motion materials, which include evidence about the nature of sexual abuse and the potential impact on AA’s children. I have not summarized the evidence in detail because it could, inadvertently, lead to the children being identified. Nevertheless, I am satisfied that disclosing AA’s sexual abuse in a public forum before the children have been told about the abuse privately will likely cause them significant trauma.

[25] I recognize that litigation often involves public disclosure of information that the parties would prefer to remain private. A risk that a litigant’s privacy will be infringed through the public disclosure of information will not be sufficient to justify an order limiting public access to the Court and to court records: Sherman Estate, at paras. 56 to 59. The issue here, however, is not merely a risk to AA’s privacy or a preference on AA’s part to keep information about his misconduct private. The issue is the health and safety of AA’s children, who were not parties to the proceedings before the Law Society Tribunal or Appeal Division and are not parties to the proceedings in this court.

[26] AA’s children are entitled to protection from the serious psychological harm that could arise from public disclosure of the sexual abuse.

[27] The Law Society does not oppose an anonymization order being made in relation to the identity of AA’s former spouse and children to protect their privacy. However, an order that protects the children’s identities will not protect them from finding out about their father’s abuse. In fact, the Law Society concedes that disclosing AA’s name will likely result in their children finding out what happened.

[28] The Law Society also argues AA has had long enough to find an opportunity and an appropriately supportive environment in which to disclose the abuse to his children. The Law Society argues AA is delaying disclosing his abuse to the children to protect his own identity. I would, of course, be concerned if I thought AA was delaying telling the children to protect his own privacy interest. The evidence, however, does not support such a finding. AA and his former spouse were cross-examined on the affidavits they filed in support of this motion. AA testified he would prefer to tell the children about his sexual misconduct now. His former spouse, however, is very strongly of the view that the children should never be told. It seems that AA has not told his children about what happened at least in part out of respect for his former spouse’s opinion.

[29] It may not be possible for AA to keep his identity concealed forever, particularly if he is successful on this judicial review application and he is granted a license with the condition imposed by the Law Society Tribunal. At a minimum, that condition will be on his license and members of the public (and the media) will likely be able to figure out that he is the person previously identified as AA.

[30] But for now, I am satisfied that there will be a risk of serious harm to an important public interest – the wellbeing of AA’s children – if his name is not anonymized in the court record.

b. Is an anonymization order necessary to protect the important public interest?

[31] AA is seeking a permanent anonymization order that would prohibit the Law Society from ever disclosing his name to anyone.

[32] The Law Society argues that even if there is a serious threat to an important public interest, a permanent anonymization order is not necessary. The Law Society argues that a time-limited order will adequately protect the important interests at stake. I agree.

[33] A temporary anonymization order will protect the children until the hearing of this judicial review application. A temporary order will also give AA and his former spouse time to disclose to their children what happened according to each child’s needs before they might be subject to public scrutiny. Finally, a temporary order will allow the panel hearing this application decide whether a further order is appropriate.

c. Do the benefits of a temporary order outweigh the negative impact on the open court principle?

[34] Balancing the benefits of an anonymization order against its impact on the open court principle requires me to consider the nature and extent of the order contemplated.

[35] AA argues that an anonymization order will minimally impair the open court principle because it will prohibit the public disclosure of only a “sliver” of information – his name. AA argues all the other details of his misconduct and the proceedings before the Law Society are available to the media and the public. The Law Society disputes this characterization of the order. The Law Society argues that preventing the disclosure of AA’s name will profoundly undermine its ability to regulate in the public interest because members of the public will not know that the lawyer whom they are thinking of retaining is AA.

[36] Whether AA’s characterization or the Law Society’s characterization of the order is right largely depends on the outcome of the judicial review application. For now, the anonymization order will have little impact on the open court principle. All the details of this case other than AA’s name is available to the public. All the decisions have been published. The public can scrutinize the process and the rulings. For now, the only thing the public does not know is AA’s identity. And I issued a stay of the Appeal Division’s decision so AA will not be licensed to practice law unless he is successful on the judicial review application.

[37] The impact of an anonymization order will be quite different, however, if AA is successful and is entitled to be licensed. The Law Society has an obligation to regulate in the public interest: Law Society Act, R.S.O. 1990, c. L.8, s. 4.2. Part of the public interest necessarily involves notifying the public of misconduct by lawyer (and paralegal) licensees so the public can make an informed decision whether to hire a particular lawyer. The Law Society maintains a public directory of lawyer and paralegal licensees. The directory says whether the licensee has a “regulatory history” and provides details of that history. The directory is one way the Law Society can give notice to the public that a licensee has engaged in misconduct in the past.

[38] Disclosing AA’s identity will take on much greater significance if he is successful on the judicial review application and the Appeal Division’s finding that he is of good character is upheld. Subject to any further appeal, AA would then be entitled to be licensed. The Law Society would then have a very strong interest, consistent with its statutory mandate, in having the anonymization order lifted so the public could make an informed decision about whether to retain AA with the full knowledge of what he has done. If, however, the Law Society is successful in its judicial review application and AA does not meet the criteria for a license, the public interest in AA’s identity may be significantly reduced.

[39] The impact of a permanent anonymization on the public interest cannot be known until the Law Society’s judicial review application is decided, which is why I am not prepared to make a permanent order now. Nevertheless, on balance, I am satisfied that the benefits of a temporary order pending the hearing of this application outweighs the negative impact on the open court principle.

d. Conclusion and Costs

[40] AA’s motion for an anonymization order is granted in part.

[41] AA’s name, the name of his former spouse and the names of their children shall be anonymized in any materials filed with the court and in any pre-hearing reasons or directions issued by the court. No person shall publish, broadcast or transmit any information that would tend to identify AA, his former spouse or their children. This order shall expire at the end of the hearing of the Law Society’s judicial review application unless it is extended by the panel hearing the matter.

[42] If AA intends to ask the panel to extend this order either temporarily or permanently, he must address that issue in his factum on the judicial review application. If AA raises this issue in his factum, the Law Society may file a reply factum of no more than 10 pages double spaced no later than July 12, 2024. If this issue is raised before the panel, the parties may rely on the record filed on this motion and shall not file any new evidence.

[43] The Law Society shall pay AA $5000 in costs of this motion inclusive of HST and disbursements.

Davies, J.

Date: May 31, 2024