Court File and Parties
COURT FILE NO.: CV-20-638954 DATE: 20200406 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Mother Doe et al. Plaintiffs
- and -
Havergal College et al. Defendants
BEFORE: F.L. Myers J.
COUNSEL: Angela I. Salvatore, for the Plaintiffs Ren Bucholz, for the Defendant Havergal College Shaun Laubman and Connia Chen, for a minor Defendant by her litigation guardian
READ: April 6, 2020
CASE CONFERENCE endorsement
[1] I heard counsel for the plaintiffs and all but one of the defendants at an urgent case conference this afternoon on very little notice.
[2] The minor plaintiff and her litigation guardian sue for damages flowing from allegations that minor plaintiff was bullied while in high school.
[3] The plaintiffs issued the statement of claim last week. The plaintiffs drafted the claim using pseudonyms for the themselves but the legal names of the minor defendants whom the plaintiffs sue.
[4] The Toronto Star apparently has received a copy of the statement of claim and has indicated interest in the story (although it apparently has volunteered not to disclose the names of the minor parties).
[5] This morning, the plaintiffs delivered material for a motion without notice seeking a large number of heads of relief including sealing the court file and injunctions and publications bans to protect the minor parties from psychological harm from public disclosure of their names. Significant other substantive and procedural relief was also sought by the plaintiffs without notice.
[6] I ordered a case conference to consider the matter for 3:00 p.m. this afternoon. At around noon, Havergal College brought a motion on notice for a sealing order and publication ban on short notice to the parties and to the media (in accordance with Part “F” of the Consolidated Provincial Practice Direction). Mr. Laubman and Ms. Chen act for one of the minor defendants whom the plaintiffs sue. She also came forward with a motion for the appointment of a litigation guardian and similar relief by way of sealing orders and publication bans.
[7] There is another defendant who has not yet appeared. While I do not have submissions made on that party’s behalf, it seems to me that the submissions of Mr. Laubman and Ms. Chen’s clients and the school are consistent with her interests.
[8] All of the parties’ motions for sealing orders and publications bans are scheduled for Thursday, April 9, 2020 at 10:15 a.m. The hearing will be by video conference using the Zoom platform. The hearing details are set out in Schedule “A” to this endorsement.
[9] Counsel confirmed that their clients would not be delivering any further evidence for the motions.
[10] I have considered every request for relief in the plaintiffs’ notice of motion delivered this morning. I advised counsel during the case conference, that apart from the urgent interim terms addressed below, the motion for all of the other relief sought by the plaintiffs must be made on notice to the defendants. In accordance with the para. 10 of the Notice to the Profession dated March 15, 2020, I have determined from the motion record and factum filed that Rules 37.07(1) and (2) of the Rules of Civil Procedure, RRO 1990, Reg 194, require notice of the motion be given. Nothing about the circumstances surrounding the other relief sought renders service impracticable or unnecessary. To the contrary, given that counsel are already retained and appearing for two of three defendant interests and the relief sought affects those defendants and counsel directly, it is very much in the interests of justice and fairness that they be given notice of the motion.
[11] I told the plaintiffs’ counsel that she did not have to decide on the fly if the plaintiffs would continue to seek the remaining relief. If they wish to do so, they are free to serve their motion record at a time of their choosing. If they do not serve their motion record, then the request simply will not come forward. Despite initially advising that she needed time to determine this question, counsel advised near the end of the case conference that at least some of the relief would be sought on notice at the hearing this Thursday. She then indicated that a further affidavit from her client would be required. When I inquired as to why further evidence was required for the motion just because it was now going to be made on notice, counsel changed her position and advised that she was content with the current record. Accordingly, apart from any evidence that may be filed by the media or the unrepresented defendant, the evidentiary record is closed. Factums may be filed. If the unrepresented defendant or any member of the media files material, counsel for the parties present today may make submissions as to any desire for response or reply evidence at the return of the motion on Thursday.
[12] I advised the parties that I am concerned about the breadth of the sealing, injunction relief against non-parties, and publication bans that they seek. The minor defendants are not of tender years. Neither attends the school at this time. The events and worst of the consequences seem to have occurred some time ago. I do not for a moment minimize the superordinate importance of children’s privacy. But each case requires a fair balancing of interests on its own facts.
[13] Accordingly, it is necessary to ensure that the media and the remaining defendant have notice of the hearing on Thursday. I direct each of the parties to deliver revised notices of motion to each other and to the court’s media portal in accordance with s. 111 of the Consolidated Provincial Practice Direction. Each notice must make clear reference to the abridged timing of the hearing of the motion and provide the Zoom coordinates set out below.
[14] In the very brief interim, I am satisfied that the privacy interests of the minor defendants require protection pending the hearing of fuller argument on the merits. The public interest in protecting the minors outweighs the open courts principle for a few days to ensure that there can be fair development of the countervailing arguments. If it turns out that the proper balance weighs in favour of protection of the minors’ privacy, if I do not give an interim protective order, the benefits sought may be undermined. On the other hand, if the orders sought are adjudged to be too wide, then there will be little harm from an overbroad interim order having been made for just a few days. As the Toronto Star has advised that it has an April 10, 2020 deadline, hearing the motion on April 9, 2020 will not likely hold up the media much, if at all, in any event.
[15] On consent of the parties therefore, as a term of the scheduling of these motions, the following interim terms are ordered in accordance with Rule 1.05 of the Rules of Civil Procedure: a. The Court’s entire file is sealed and is not to be made available to the public except by order of a judge; and b. No one may publish in any form or media any information that discloses the identity of any of the minor parties to this litigation or any information that tends to do so. For greater certainty, this order prohibits anyone from publishing any details of the allegations made against or by any of the minor parties pending further order of the court.
[16] Initially the plaintiffs opposed the addition of the second sentence banning interim publication of the details of allegations. When I inquired of counsel as to whether the details might not provide an indication of the identities of the parties, she changed her position and consented to the term being ordered.
[17] On consent, the issuance of the statement of claim using pseudonyms for the plaintiffs is approved nunc pro tunc. The parties have not yet agreed on the use of pseudonyms for the minor defendants. That remains an issue for the hearing on Thursday.
[18] On consent, the motion by the clients of Mr. Laubman and Ms. Chen to appoint a litigation guardian is granted. Mr. Laubman and Ms. Chen may email a draft order in the form sought in their motion record for my signature.
[19] The defendants ask for costs of this case conference to be reserved to the judge who determines the motion. They ask to reserve the arguments that the plaintiffs’ manner of proceeding caused them to incur costs that they ought not to have had to incur. Ms. Salvatore argues that both sides prepared motion materials and therefore there should be no costs. It seems to me that both sides prepare materials in virtually all proceedings and yet the normative outcome is that costs are awarded to the successful party. I fear that I may not have understood the force of the argument made by Ms. Salvatore. Perhaps I have mis-stated it or it is based on a legal principle of which I am not cognizant. It seems to me that the fairest outcome is to reserve all argument of costs to the judge who hears the motion including the plaintiffs’ argument that there should be no costs of this attendance. In that way, Ms. Salvatore can make or expand upon her argument if so advised.
[20] Finally, in just one day, this case produced more than a fair amount of email back and forth with the court. At one point I directed the Motion Coordinator to advise a party to cease communicating without notice to the other parties. In all, I commend to the parties paragraphs 6 to 15 of Wang v 2426483 Ontario Limited, 2020 ONSC 2040. In addition, as I am not case managing this matter, I do not invite informal communication under Rule 1.09 of the Rules of Civil Procedure. Counsel are to refrain from communicating with the court staff except to file material permitted above.
F.L. Myers J. Date: April 6, 2020