COURT OF APPEAL FOR ONTARIO DATE: 20220805 DOCKET: C69592 & C69600
MacPherson, van Rensburg and Roberts JJ.A.
BETWEEN
P1, by his Litigation Guardian Parent 1, Parent P1 and Parent P2 Plaintiffs (Appellants)
and
XYZ School, A.A., D1, a minor by his Litigation Guardian Parent D1, D2, a minor by his Litigation Guardian Parent D2, B.B., C.C., and E.E. Defendants (Respondents)
Counsel: Michael Mazzuca and Broghan Masters, for the appellants P1, a minor by his Litigation Guardian Parent P1, Parent P1 and Parent P2 Emma Carver, for the appellant Toronto Star Newspapers Ltd. Brendan Morrison, for the respondent D1, a minor by his Litigation Guardian Parent D1 Graeme A. Hamilton, for the respondent D2, a minor by his Litigation Guardian Parent D2 Kathryn McCulloch, for the respondents XYZ School, A.A., B.B., C.C., and E.E.
Heard: January 27, 2022 by video conference
On appeal from the order of Justice Grant R. Dow of the Superior Court of Justice, dated June 4, 2021, with reasons at 2021 ONSC 4073.
van Rensburg J.A.:
[1] This is an appeal of an order made in civil proceedings respecting events alleged to have occurred when the first plaintiff (whose parents are also plaintiffs) and two of the defendants were students at the same school. The school and four of its employees are also named as defendants. They are referred to collectively as the “School Defendants”, and the school alone is referred to as XYZ School.
[2] Throughout the proceedings, the motion judge made a series of orders restricting public access to court documents and prohibiting publication (referred to collectively as “confidentiality orders”). The most recent order, which is the order under appeal, provides for: (1) the sealing of two court files, and the treatment of all documents filed therein as confidential and not part of the public record – with the exception of an anonymized Fresh as Amended Statement of Claim and the motion judge’s reasons for decision on the confidentiality motion; (2) the anonymization of the names of all the parties, and certain other terms; and (3) the continuation of a publication ban in respect of the confidentiality motion and the action in the terms of earlier orders.
[3] The parties agree that the order under appeal is overbroad and should be set aside and replaced by a less restrictive order. They recognize that there is an important public interest at stake that warrants the continued anonymization of the names of the minor parties [1] and their parents, and a publication ban over information that would identify them. They disagree about the scope of the order that is required, and in particular whether the anonymization order and publication ban should extend to the names of the School Defendants and certain other information that would identify them.
[4] For the reasons that follow, I would allow the appeal. I would replace the motion judge’s order by an order that: (a) anonymizes the names of the minor parties and their litigation guardians only; (b) redacts certain information that would serve to identify the minor parties from the materials filed publicly, with an unredacted version of all such materials filed under seal and treated confidentially in the action; and (c) prohibits the publication of any information that identifies or would tend to identify the minor parties or the litigation guardians, including without limitation the redacted information. I would not extend the confidentiality order to the identities of the School Defendants.
A. The Pleadings
[5] On January 20, 2020, a minor, P1, and his parents, Parent P1 and Parent P2 (together, the “Plaintiffs”) brought a claim against two of P1’s classmates, D1 and D2 (together, the “Minor Defendants”) and the School Defendants. The statement of claim originally used initials for the names of the plaintiffs but included the full names of all defendants. The Plaintiffs had previously commenced a claim in relation to the same allegations against the school alone (the “First Action”). They have not pursued the First Action, but it has not yet been formally discontinued or dismissed. [2]
[6] The Plaintiffs’ claim arises from two alleged incidents. First, P1 alleges that he was sexually assaulted by D1 and D2 during an overnight school trip at an Outdoor Centre operated and controlled by XYZ School and its staff. P1 pleads, among other things, that he reported the incident to A.A., a school employee who was on-site at the overnight school trip, and that XYZ School failed to prevent and to investigate the sexual assault. The Plaintiffs claim damages from D1 and D2 for the alleged sexual assault and from A.A. and XYZ School for, among other things, negligence and breach of fiduciary duty.
[7] Second, the Plaintiffs allege that XYZ School and B.B., C.C. and E.E. (other school employees) engaged in misconduct in relation to what is described in the Fresh as Amended Statement of Claim as the “Website Incident”, in which inappropriate content was posted on a website. The Website Incident resulted in discipline for a number of students, including P1, and the initiation of a discipline process for P1. However, P1 withdrew from XYZ School before any final decision on his expulsion. Among other things, the Plaintiffs allege that, during the discipline process, P1 was forced to confess to the Website Incident and that he was unlawfully confined. The Plaintiffs claim damages from XYZ School, B.B., C.C. and E.E. for their negligent and intentional conduct in relation to P1’s discipline following the Website Incident.
[8] The Minor Defendants filed statements of defence denying the Plaintiffs’ allegations against them. At the time that the confidentiality motion came before the motion judge, the School Defendants had not yet filed a statement of defence. They have since done so, denying the allegations made against them. The statements of defence are filed under seal and are not part of the public record. [3]
B. Procedural History
(1) The Interim Confidentiality Orders
[9] In January 2020, shortly after learning of the Plaintiffs’ claim, the Minor Defendants moved for a non-publication and sealing order. The motion was scheduled to be argued on March 27, 2020.
[10] On January 28, 2020, the motion judge sealed all documents filed in respect of the confidentiality motion and the action pending a full hearing of the motion, and he granted an “interim interim publication ban” in respect of the motion. This order was not opposed by the Plaintiffs and was made without prejudice to the rights of all parties on the full hearing of the motion.
[11] On February 14, 2020, the motion judge held a hearing on the interim non-publication and sealing orders. The Minor Defendants sought a number of orders: (a) sealing the statement of claim in the First Action; (b) anonymizing the names of the Minor Defendants and their litigation guardians; (c) banning publication of any information that would identify the Minor Defendants; and (d) dispensing with notice to the media. During oral submissions, the Minor Defendants also requested the anonymization of the School Defendants’ names. The Plaintiffs opposed the extension of the confidentiality orders to the School Defendants’ names. No media were present, as notice to the media had not been given.
[12] The motion judge concluded that the information contained in the statement of claim (even with the anonymization of the minor parties’ names) was sufficiently detailed to identify the minors involved. The motion judge sealed both actions on an interim basis and ordered the Plaintiffs to file a fresh as amended statement of claim, which would anonymize the names of the parties and other prescribed information and would be part of the public court record. He emphasized that this determination was provisional, stating that he remained open to be persuaded, after notification to the media and further submissions, that the restrictions on the statement of claim could be narrowed. The motion judge also ordered the Minor Defendants to give notice to the media.
[13] The motion judge made a further interim order on March 13, 2020, expanding the information to be anonymized in the publicly available statement of claim to include reference to the plaintiffs as P1, Parent P1 and Parent P2 (rather than their initials), to use “Website” in place of the specific website that was pleaded in respect of the Website Incident, and to anonymize a number of details with respect to the operation of XYZ School. The confidentiality motion hearing was adjourned several times to allow for the delivery of notice to the media and due to the onset of the COVID-19 pandemic. In the interim, the anonymized Fresh as Amended Statement of Claim was filed pursuant to a consent order dated November 30, 2020.
(2) Notice to the Media
[14] On February 10, 2021, the motion judge approved the notice to the media. Counsel for D1 submitted the notice to the media through the Superior Court of Justice Media Service List on February 11, 2021. By this time, the interim confidentiality orders had already been in place for about a year.
[15] Shortly after receiving notice, counsel for Toronto Star Newspapers Ltd. (the “Toronto Star”) sought access to the confidentiality motion materials. After being provided with redacted copies of the affidavits, she requested copies of all motion materials with only the names of the individual parties redacted, on an undertaking that the materials would be for counsel’s eyes only and for the purpose of addressing the confidentiality motion. The request was opposed by the Minor Defendants, and the motion judge directed that only the redacted motion materials and pleadings were to be shared with the Toronto Star’s counsel.
[16] The confidentiality motion was returned before the motion judge on March 31, 2021. At issue was the appropriateness and extent of the interim order, and in particular the continued anonymization of XYZ School and other details. The motion judge released his decision on June 4, 2021, continuing the non-publication and anonymization orders. The Plaintiffs and the Toronto Star have appealed this order. [4]
C. The Decision Below
(1) The Evidence Before the Motion Judge
[17] Before turning to the motion judge’s decision, I pause to summarize the evidence that was contained in the record before him. This provides the necessary context for the motion judge’s conclusions and for the discussion that follows. Although sealed copies of the affidavits were provided on appeal (including to counsel for the Toronto Star, who had access to the sealed materials “for counsel’s eyes only”), my references are to the redacted affidavits that were provided to the Toronto Star in accordance with the order of the motion judge, and are, at this stage, part of the public record on this appeal.
[18] The record on the confidentiality motion consisted of two affidavits from Parent D1, who is D1’s litigation guardian; three affidavits from a senior administrator of XYZ School; and an affidavit from Parent P1, who is both P1’s litigation guardian and a plaintiff in the action. Counsel for P1 and counsel for the School Defendants also provided affidavits. None of the affiants were cross-examined on their affidavits.
[19] Parent D1 swore that “[g]iven the nature of the allegations and the high profile of [XYZ School] in Toronto, I believe that without appropriate confidentiality Orders … the media will have a strong interest in regularly reporting on this case”, and added that he was “deeply concerned that public knowledge of the serious allegations … and frequent media attention will cause irreparable emotional and psychological harm to [D1]”.
[20] The XYZ School administrator described XYZ School as a “close community of students and families where many are well known to each other”. She stated that there are approximately 1,000 students enrolled at XYZ School, of which several hundred students are enrolled in the high school grade levels. The XYZ School administrator swore that, at least as of March 2021, there was “no known media coverage” and there were “no rumours or communications at [XYZ School]” about the action. Further, the administrator swore that she believed that “the litigation and the sexual assault incident allegations involving [D1 and D2] were not generally known in the [XYZ School] community.” She added that she believed that “it would be harmful to all of the student body at [XYZ School] should this litigation, and in particular the allegations about the sexual assault incident … receive any media attention, publicity, or otherwise become widely known in the school community.” The XYZ School administrator provided additional details about P1, D1 and D2 and the alleged events leading to the claims, which details are not set out in the pleadings.
[21] Parent P1 swore a brief affidavit, the core of which was that he “disagree[s] with the notion that revealing the true identity of the [XYZ School] staff members/faculty will directly or indirectly result in the identification of the minor litigants, including [P1]”.
(2) The Motion Judge’s Decision
[22] The motion judge rendered his decision prior to the release of the Supreme Court of Canada’s decision in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361. His analysis, therefore, followed the two-part Dagenais / Mentuck test: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442.
[23] The motion judge observed that the parties accepted that the minors were entitled to have their identities protected. He framed the issue before him as “the extent to which it is necessary to restrict public knowledge of the circumstances of the allegations giving rise to the action to accomplish that requirement”: at para. 5.
[24] The Minor Defendants argued that identifying the school would result in the minors being identified, and that they would suffer psychological harm and reputational damage if they were publicly identified. They pointed to several factors that they claimed would increase their risk of identification. For example, they asserted that the enrollment of 1,000 students at XYZ School was not sufficiently large to remove the likelihood of being identified, and that the fact that all minor parties were in the same class when P1 withdrew from XYZ School after the Website Incident might increase the ability of persons, particularly in the school community, to identify them.
[25] The motion judge was satisfied that the evidence adduced by the Minor Defendants was such that “maintaining a publication ban and anonymization of the parties is required”, and that “a real and substantial risk exists that is well grounded in the evidence”: at para. 15. With respect to how long the publication ban and anonymization order should remain in place, the motion judge added that these restrictions would be limited “to the shortest time possible and [were] subject to review upon the change of any of the relevant facts”: at para. 17.
[26] In the result, the motion judge imposed a three-pronged confidentiality order, subject to further order of the court: (1) an anonymity order applicable to the names of the minor parties, their litigation guardians, the School Defendants, and the specific terms addressed in his previous orders; (2) a publication ban on the same information; and (3) an order sealing the court files of both actions in their entirety, except for the Plaintiffs’ anonymized Fresh as Amended Statement of Claim and the motion judge’s reasons for making this confidentiality order.
D. The issues on appeal and the parties’ positions
[27] The submissions of the Toronto Star and the Plaintiffs overlap significantly, so I will refer to these parties together as the “appellants”. The appellants submit that the motion judge erred in two respects: first, in making an order that permitted XYZ School’s identity to be concealed from the public; and second, in imposing a total sealing order over the court files. [5] The appellants agree that the identities of the minor parties and their litigation guardians should be anonymized and subject to a redaction order and publication ban. However, they ask this court to set aside the anonymization and non-publication orders as they pertain to the identity of XYZ School, and to narrow the sealing order such that it only permits redaction of the minor parties’ identities. They acknowledge that any information that would identify the minor parties should be protected, but they contend that general language prohibiting the publication of “any information that would tend to identify the minor parties” would be sufficient.
[28] The Minor Defendants concede that the complete sealing order imposed by the motion judge is overbroad and should be set aside. However, they maintain that XYZ School’s identity and other information that would identify the school, including the identities of the individual School Defendants, must be concealed in the interest of protecting the identities of the minor parties. They propose a revised order that – in addition to information identifying the minor parties – targets for anonymization, redaction and non-publication, specific information, such as unique terminology used in the XYZ School community and particular details about XYZ School’s operations.
[29] The School Defendants appeared through counsel on the appeal but did not file a factum or other materials. They indicated that they supported the position of the Minor Defendants.
E. Discussion
(1) The Governing Principles
[30] In any court proceeding, there is a strong presumption of court openness. The open court principle, a “hallmark of a democratic society”, has long been recognized at common law and is also “inextricably tied to the rights guaranteed under s. 2(b) of the Charter”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at paras. 22-23. The Supreme Court recently affirmed the importance of the strong presumption of court openness in Sherman Estate, where Kasirer J. wrote, at paras. 1-2:
This Court has been resolute in recognizing that the open court principle is protected by the constitutionality-entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.
Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press.
[31] Notwithstanding this strong presumption, courts must also remain “responsive to ‘competing important public interests’ that may be put at risk by that openness”: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, 461 D.L.R. (4th) 635, at para. 37, citing Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 26 and 28.
[32] The presumption of court openness in civil proceedings in Ontario is expressly set out in the Courts of Justice Act, R.S.O. 1990, c. C.43. Sections 135(1) and (2), read together, provide that court hearings are open to the public unless “the possibility of serious harm or injustice to any person justifies a departure” from the open court principle. Section 137 similarly sets out the presumption that documents filed in civil proceedings are public, unless the court orders that they be treated as confidential, sealed and not form part of the public record.
[33] In considering whether to depart from the presumption of court openness in this case, the motion judge applied the two-part Dagenais / Mentuck test. However, the Supreme Court has since reformulated the test for discretionary limits on presumptive court openness, “without altering its essence”: Sherman Estate, at para. 38. The person asking the court to exercise its discretion to limit court openness (whether by a publication ban, a sealing order, an in camera order, or any other type of discretionary confidentiality order) must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects. A court will only order a discretionary limit on court openness where all three of these prerequisites are met: Sherman Estate, at para. 38. I will briefly describe each of these prerequisites, structured as the three stages of the Sherman Estate test, in turn.
[34] The first stage of the Sherman Estate test is a “high bar”: Sherman Estate, at para. 3. It requires the person seeking a discretionary confidentiality order to demonstrate, as a threshold requirement, that there is an important public interest at stake and that court openness poses a serious risk to this interest. The Supreme Court explained that, at least theoretically, these are two “separate and qualitatively distinct operations”: at para. 42. In other words, even where a valid important public interest has been identified, a confidentiality order will be refused if this interest is not at serious risk on the facts of a given case: at para. 42. Whether the interest is at “serious risk” is a fact-specific inquiry grounded in the context of the case: at para. 52. A serious risk can be established through direct evidence or through logical inferences, but these inferences must be “grounded in objective circumstantial facts that reasonably allow the finding to be made”: Sherman Estate, at para. 97. Both the probability of the harm and its gravity are relevant to the assessment: at para. 98.
[35] At the second stage of the test, the person seeking to limit court openness must show that the particular order sought is necessary to address the risk. If less restrictive measures would likely be sufficient as a reasonable alternative to prevent the serious risk to the identified public interest, the order sought would represent an unacceptable restriction on the open court principle: at para. 105. The court must determine “whether there are alternatives to the order sought and … restrict the order as much as reasonably possible to prevent the serious risk”: at para. 105.
[36] At the third and final stage of the test, the person seeking to limit court openness must show that the order they seek is proportionate – that is, that its benefits outweigh its harmful effects, including the negative impact on the open court principle. This requires a contextual balancing, informed by the importance of the open court principle and whether the information the order seeks to protect is peripheral or central to the judicial process: at para. 106.
(2) The Principles Applied
a) The standard of review
[37] The parties disagree about the appropriate standard of review in this case. The appellants contend that any discretionary confidentiality order is reviewable by this court on a correctness standard and that it is open to the court on appeal to make its own findings of fact on the evidence filed. While the respondents accept that the standard of review of orders restricting court openness is correctness, they argue that deference is owed to the motion judge’s findings of fact at first instance, include his determination that the identification of XYZ School would tend to identify the minor parties.
[38] It is unnecessary to delve into the standard of review question in this appeal, as nothing turns on its determination. It is sufficient to say that in the circumstances of this case, a correctness standard applies, and I will approach the issues de novo. First, the parties agree that the order that was issued by the motion judge was too broad, and none of them seek to uphold the order. The respondents fairly concede that the order was broader than the order they were seeking, and, in any event, note that the circumstances have evolved with the passage of time: the minor parties are over 18 years of age and are no longer students at XYZ School. Second, while the motion judge summarized the evidence before him and identified the relevant legal principles, he did not consider whether an order anonymizing the identity of the School Defendants was necessary in order to protect the identities of the minor parties, which constituted a failure to consider a required element of the legal test. Nor did he make a specific finding of fact that the identity of the school would tend to identify the minor parties. To the extent that he made this finding implicitly, as asserted by the respondents, the motion judge did not explain the evidentiary basis for this finding.
b) The first stage of the Sherman Estate test: serious risk to an important public interest
[39] The motion judge identified the public interest as the protection of the minor parties’ privacy interests in order to protect them from psychological harm and reputational damage given their vulnerability as minors both legally and developmentally: at para. 14. The parties all agree that there is a public interest in protecting the minor parties’ privacy and identities.
[40] The public interest in the protection of the identities of minor victims of crime and minor accused persons is recognized in statutory provisions providing for publication bans in the criminal and youth criminal justice contexts: see, for example, s. 486.4(1) of the Criminal Code (non-publication of the identity of a victim or witness in sexual offences); ss. 486.4(2.1) and (2.2) of the Criminal Code (non-publication of the identity of a victim under 18 in respect of other offences, which is mandatory on application of the victim or the Crown); and the Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 110 and 111 (statutory prohibition against the publication of the name of a young person dealt with under the Act and any information related to a young person if it would identify that person). See also F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880, at paras. 14-17, and R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at paras. 40-43 (both cases dealing with young offenders); and A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at paras. 14-27 (permitting a young person to proceed anonymously with a civil claim in respect of alleged sexualized cyberbullying).
[41] I am satisfied that “court openness” – that is, proceeding with the litigation in the normal course, under the presumption of court openness and without any confidentiality order or publication ban – would present a serious risk to an important public interest in this case.
[42] The appellants argue that the main question on this appeal – whether XYZ School’s name should continue to be anonymized – also falls to be determined at the first stage of the Sherman Estate test. They say that the evidence does not support that the disclosure of XYZ School’s identity would pose a serious risk to the important public interest in protecting the minor parties’ identities.
[43] The respondents assert that the first stage of the Sherman Estate test is easily met; in fact, that it is conceded in this case: the protection of the identities of the minor parties is an important public interest that is put at serious risk by the open court principle. It is at the second and third stages of the Sherman Estate analysis that the court must determine the terms of the order that is necessary to protect against disclosure of the identities of P1, D1 and D2, including whether or not it is necessary to anonymize the name of XYZ School.
[44] I agree with the respondents that there is no question that the first, or threshold, issue in Sherman Estate is met in this case, and that the dispute about disclosing XYZ School’s name falls to be determined at the second and third stages of the Sherman Estate test. There is an important public interest in protecting the identities of the minor parties, and court openness would pose a serious threat to that interest. It is at the second and third stages that the court must consider the measures that are available in order to address that serious threat – and to determine the appropriate order that is proportionate to the interests at play. As I will explain, the onus remains on the person seeking the confidentiality order to satisfy the court that the particular terms they seek are necessary, in that alternative and less restrictive terms are insufficient to attenuate the risk – in this case, the risk of disclosing the identities of the minor parties, and that the order represents a proportionate balancing between protecting the minor litigants’ identities and the open court principle: Sherman Estate, at paras. 38, 105 and 106.
[45] Before proceeding to the next stages of the analysis, I pause to note that no other “public interest” to counter the open court principle is engaged in this case. Importantly, the School Defendants did not move for a confidentiality order protecting their identities, did not file a factum on the appeal, and confirmed in oral argument that they are not asserting any public interest other than the need to protect the identities of the minor parties. And, while the Minor Defendants suggested in oral argument in this court that there are two other objectively discernible public interests that are “up for debate” in this case – the interest in not prematurely stigmatizing alleged law breakers and the protection of the innocent – they did not press these points. Other public interests may well arise in other cases, depending on the interests asserted and the circumstances of the particular case. But in this instance, the sole public interest on which the analysis of the second and third stages of the Sherman Estate test will focus is the protection of the minor parties’ privacy interests to protect them from psychological harm and reputational damage given their vulnerability as minors both legally and developmentally.
c) The second stage of the Sherman Estate test: necessity
[46] At the second stage, the focus is on “minimal impairment” of the open court principle: the court must consider whether reasonably alternative measures are available and restrict the order as far as possible without sacrificing the prevention of the risk: Mentuck, at para. 36; Sherman Estate, at para. 105.
[47] The burden remains on the person seeking to restrict court openness through a confidentiality order to establish that the restrictions on court openness are needed, in order to respond to the serious competing interest that has been identified. There must be a “convincing evidentiary basis”: C.B.C. v. New Brunswick, at para. 39. In the context of a confidentiality order that is intended to protect the identity of minors, “evidence would be required to show that the naming of other persons or places could disclose the identity of the [minor complainant]”: Southam Inc. v. R. (1989), 47 C.C.C. (3d) 21 (C.A.), at p. 24.
[48] I begin by setting out the parties’ positions on whether the order sought by the Minor Defendants is necessary to prevent the serious risk to the identified public interest. As I have already noted, the parties agree that the order under appeal is too broad. They agree that there was no basis for the motion judge to impose a sealing order over the whole court file, but that there may be a basis for the redaction of some information. They also agree that any information that would tend to identify the minor parties should be subject to a publication ban. They disagree about the scope of information that should be anonymized and/or redacted and about the scope of the information that should be covered by a publication ban (including whether there is a need for particularization or whether a general publication ban would suffice). A key point of dispute is with respect to the identity of XYZ School, and any information that might tend to identify the school.
[49] The Minor Defendants continue to assert on this appeal, as they did below, that the anonymization of XYZ School is required to protect their identities. They point to the specific allegations in the action that they say would permit members of the school community to determine their identities, if such information were publicly available in conjunction with XYZ School’s name.
[50] Essentially, the Minor Defendants’ argument is that the name of XYZ School, in conjunction with the details in the pleadings (including the reference to the Website Incident, P1’s withdrawal from the school, the timing of the events, and the nickname “Keaster Bunny” that P1 claims to have been called after the alleged sexual assault), would reveal the identity of P1. In turn, other details, such as the fact that the minor parties were in the same grade, their assignment to the same group within the school and the location of the alleged sexual assault would narrow the pool of students who could have been present when the alleged sexual assault occurred, and would make the Minor Defendants easily identifiable. [6]
[51] The Minor Defendants also refer to details relating to the sexual assault incident that were revealed in a Toronto Star article in June 2021. They contend that the only way to protect their identities is to continue to anonymize XYZ School and to redact information that would identify the school. Otherwise, the details that have already been made public, in combination with the school name, would seriously risk revealing their identities, especially within the community of students who attended the school at the time and their families.
[52] The appellants argue that an order that conceals XYZ School’s identity is not necessary. First, the appellants contend that there is no basis for an order that would permit XYZ School, which is a defendant to the action, to litigate anonymously. They assert that there is no evidentiary basis to conclude that revealing the name of the school would identify the minor parties, and therefore no justification for an order concealing it. Second, they say that reasonably alternative measures, namely an anonymization order over the minors’ identities and a publication ban over their identifying information, provide sufficient protection and are significantly less onerous intrusions into court openness.
[53] P1’s position is that his identity is adequately protected by an order that anonymizes the minor parties’ names and certain details, as reflected in the Fresh as Amended Statement of Claim, but reveals the names of the School Defendants. He is now over 18 years old, and he is prepared to accept the risk that if the School Defendants are identified, his own identity might be determined within the school community by virtue of being referred to as the “Keaster Bunny”, through his association with the Website Incident, the school assembly that followed the incident and his voluntary withdrawal from the school. He asserts that the identities of the Minor Defendants, however, will remain protected, even if his identity (and the identity of XYZ School) are revealed.
[54] For its part, the Toronto Star submits that the relevant audience is the “public at large”, rather than the local community. In any event, the Toronto Star asserts that it is only in combination with other potentially identifying details that XYZ School’s identity could identify the minor parties within the school community, and it is therefore not necessary to conceal XYZ School’s name. The Toronto Star’s primary position is that a general publication ban on information that would “tend to identify” the minor parties (such as is provided for young persons charged under s. 110 of the Youth Criminal Justice Act and for victims of sexual assault and minor victims under ss. 486.4(1) and 486.4(2.1) of the Criminal Code) would mitigate the serious risk and provide sufficient protection. The Toronto Star asserts that, if a general publication ban were made, it would not publish details such as the grade P1 was in when he withdrew or the year in which his withdrawal occurred. In the alternative, the Toronto Star proposes that certain information can be made explicitly subject to a publication ban.
[55] I will first address the proposed anonymization and non-publication of the school name, and then turn to the other specific information sought to be protected. The necessity of protecting some specific information – including the identity of the individual School Defendants and other information that might identify the school – will stand or fall on whether the name of the school itself must be anonymized.
[56] The focus must be on what is reasonably necessary to prevent the identified serious risk – in this case, the harm to the minor parties if their identities were revealed. In this regard, I would not endorse the Toronto Star’s assertion that the relevant audience for the determination of confidentiality orders in this case is the “public at large”, and not the local community. First, a local community is part of the general public, and it is unclear where to draw the line when information is capable of being disseminated broadly through social media. Second, in the present case, the risk that the minor parties’ identities will be revealed is situated within the context of their local community, that is, among students and former students at the school and their families. Having regard to too broad an audience may well render almost any proposed confidentiality order “unnecessary”. The question is whether a particular restriction on court openness is necessary in the context of the particular proceedings, and with regard to the particular public interest at stake.
[57] I agree with the appellants that the evidence does not support the need for an order protecting the identity of XYZ School, and in turn the other School Defendants, in order to prevent the disclosure of the names of the minor parties. I am not persuaded that the Minor Defendants’ argument that certain details about XYZ School and the timing of the allegations, together with certain assumptions, will “narrow the pool” to 16 potential defendants, is made out on the evidence. To the extent that there are some details that might narrow the pool of potential defendants, there are other ways of protecting against this risk, which I will address below.
[58] Nor am I persuaded by the Minor Defendants’ contention that the name of XYZ School, in combination with other details, would tend to identify P1 which would, in turn, tend to identify the Minor Defendants. I agree with the appellants that even if P1’s identity could be determined based on some information together with XYZ School’s name (an outcome that P1 is prepared to accept), this would not be sufficient to reveal the identities of D1 and D2. The alleged use of a nickname for P1 is a detail that is already in the public record in the Fresh as Amended Statement of Claim (with the consent of all parties), and this information does not connect the Minor Defendants to the alleged incident or to P1, or otherwise identify them. There are also less restrictive ways to protect the identity of P1 by ensuring that other less important details, such as the year of the events, and the specific website(s) he and other students posted comments on, are not published and/or are redacted from the public record.
[59] The existing Toronto Star article does not change the analysis. What is reported is the fact of the order under appeal. The details about the alleged events are taken from the Fresh as Amended Statement of Claim and the motion judge’s reasons, both of which are in the public record under the terms of the motion judge’s order, as well as information provided by P1 and his parent in an interview. Contrary to the submissions of the Minor Defendants, there is no additional information in the article that would further “narrow the pool” so that their identities could be determined if the school’s name were revealed.
[60] I turn to consider the specifics of the confidentiality order that is appropriate. Since I have determined, at the second stage of the Sherman Estate test, that it is not “necessary” to anonymize the name of XYZ School or to prohibit the publication of the school’s name, there is also no basis for a confidentiality order that would extend to the identities of the other School Defendants or information that would identify the school. The focus is on what restrictions are required to protect the identities of the minor parties.
[61] While the Toronto Star’s proposal of continued anonymization of the minor parties and a general publication ban on information that would tend to identify them is consistent with typical statutory publication bans, in some circumstances it is desirable to go further. This is one such case.
[62] In the context of the statutory publication ban for sexual assault victims, Lamer J. observed in 1988 that “media people are certainly competent enough to determine which information is subject to the ban; if not, the judge in his or her order can clarify the matters which cannot be published: Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, at p. 133. Although the definition of “media people” has certainly changed in the intervening years, accompanied by an exponential expansion in the modes for publication of information about court cases, the concern here is for some level of certainty in the context of a case where there is already debate about what information might identify the minor parties.
[63] As in Mother Doe v. Havergal College, 2020 ONSC 2227, what is required in this case is “a clear and narrow publication ban telling the press what they can and cannot report”: at para. 46. In that case, because the circumstances were already widely known at the school, the concern was about the effects of publication outside the school. The Toronto Star (as in this case) sought to limit the scope of the order to the statutory mandatory publication bans applicable in criminal and child welfare proceedings. Myers J. found it preferable that there be as much certainty as possible, with specific provisions in the non-publication order “to avoid later arguments over whether some detail published was or was not one that would tend to identify a minor”: at para. 47.
[64] Since this order will apply to documents already filed as well as the record going forward, subject to any further order of the court, it is appropriate to consider whether and to what extent information already in the court file needs to be redacted in order to protect the identities of the minor parties. To the extent that there is a risk of identifying the minor parties by disclosure of details in the materials already filed under seal, I would order the redaction of identifying information concerning the minor parties and their litigation guardians, including their names, addresses, ages, dates of birth and employment, as well as any photographs, health card, phone numbers or other identifying numbers associated with them, the years in which the events forming the basis of the action are alleged to have occurred, the years when the minors were in any particular grade or level at the school, and the specific name(s) of the website(s) involved in the Website Incident.
[65] Accordingly, at the second stage of the Sherman Estate test, I would conclude that: (a) the continued anonymization of the School Defendants and information tending to identify the school is not necessary to prevent the serious risk to the public interest at stake; and (b) it is necessary to continue to anonymize the names and to redact specific information tending to identify the minor litigants, and to prohibit the publication of such information and any other information that identifies or would tend to identify them.
d) The third stage of the Sherman Estate test: proportionality
[66] At the third stage, the Minor Defendants must show that the benefits of any order necessary to protect from a serious risk to revealing the minors’ identities outweigh the harmful effects of the order, including the negative impact on the open court principle: Sherman Estate, at para. 106, citing to Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at para. 53. As part of this balancing, the court will consider whether the information the order seeks to protect from public access is peripheral or central to the judicial process.
[67] Given my conclusions with respect to the identity of XYZ School, the only issue at this stage is whether the confidentiality measures that I have identified as necessary and appropriate to prevent the risk that the minor parties will be identified are proportional under the third stage of the Sherman Estate test. I am satisfied that the anonymization of the names of the minors and their litigation guardians, the redaction of specific identifying information, and a publication ban over the redacted information and information that would tend to identify the minors – represents a proportionate balancing between protecting the minor litigants’ identities and the open court principle. The specific details are peripheral to the issues in the litigation and their exclusion from the public record in the interest of protecting the identity of the minor litigants outweighs any interest in their disclosure as part of court openness.
F. Disposition
[68] For these reasons, I would allow the appeal and (a) set aside the order of the motion judge dated June 4, 2021 in respect of Court File Nos. CV-20-634745 and CV-19-62844 (the “Actions”); (b) limit the anonymity order in the Actions to the names of the minor parties and their litigation guardians; (c) limit the sealing order to the redaction of identifying information concerning the minor parties and their litigation guardians, including their names, addresses, ages, dates of birth and employment, as well as any photographs, health card, phone numbers or other identifying numbers associated with them, the years in which the events forming the basis of the action are alleged to have occurred, the years when the minors were in any particular grade or level at the school, and the specific name(s) of the website(s) involved in the Website Incident, with an unredacted version of all such materials filed under seal and treated confidentially in the action; and (d) prohibit the publication of any information that identifies or would tend to identify the minor parties or the litigation guardians, including without limitation the redacted information. This order applies to the materials filed in this court on appeal as well as the materials and further proceedings in the Actions, subject to further order of this court, or in the Actions to the further order of a judge of the Superior Court.
[69] I would award no costs of the appeal.
[70] Finally, I would order that the order of June 4, 2021 and the interim order of this court sealing part of the court record and prohibiting publication of certain materials filed in this court will remain in effect for 14 days following the release of these reasons, unless otherwise ordered by a court of competent jurisdiction. Thereafter, subject to any such further order, the interim order of this court shall expire and the order of June 4, 2021 be set aside in the terms provided.
Released: August 5, 2022 “J.C.M.” “K. van Rensburg J.A.” “I agree. J.C. MacPherson J.A.” “I agree. L.B. Roberts J.A.”
[1] The parties were minors at the time the alleged events took place and when the action was commenced but are now over the age of 18. Nevertheless, no one is taking the position in this appeal that the protection of the minor parties’ identities should be lifted on the basis that they have attained the age of majority. As such, they continue to be referred to in the proceedings and on this appeal as “minors”.
[2] According to an affidavit filed on behalf of XYZ School, there is a disagreement between the Plaintiffs and XYZ School about whether the First Action will be discontinued with costs thrown away or without costs.
[3] There is also at least one reply – to the statement of defence of the School Defendants, which is also filed under seal and not part of the public record.
[4] A panel of this court dismissed the Minor Defendants’ motion to quash the appeals on the basis that the order under appeal was interlocutory: P1 v. XYZ School, 2021 ONCA 901, 160 O.R. (3d) 445. The court concluded that, while the order was interlocutory with respect to the other appellants, it finally determined the rights of the media and was therefore final with respect to the Toronto Star. The court directed the appeals to be heard together pursuant to s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[5] The Toronto Star, alone, raises an additional concern on appeal about the procedure followed below. It submits that the media and the public were denied procedural fairness and invites guidance from the court in this regard. However, the Toronto Star fairly acknowledges that this procedural issue is not essential to the outcome of the appeal. As the procedural issue is peripheral to the appeal and arose in the somewhat unusual circumstances of the onset of the COVID-19 pandemic, it will not be addressed in these reasons.
[6] In oral argument, counsel suggested that combining these details would reduce the pool of “potential defendants” to 16.
