Court File and Parties

COURT FILE NO.: CV-20-638954 DATE: 20200414 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MOTHER DOE, personally, and JANE DOE, AN INFANT, by her LITIGATION GUARDIAN, MOTHER DOE Plaintiffs – and – HAVERGAL COLLEGE, SEONID DAVIS, PARENT 1, Litigation Guardian for STUDENT 1, and STUDENT 2 Defendants

Counsel: Andrew Rogerson and Angela I. Salvatore, for the Plaintiffs Linda Rothstein and Ren Bucholz, for the Defendant Havergal College Shaun Laubman and Connia Chen, for the Defendants Parent 1, litigation guardian for Student 1, and Student 2 Emma Carver for Toronto Star Newspapers Ltd.

HEARD: April 9, 2020

Important Notice to Readers

An order banning publication about this proceeding has been made pursuant to the inherent jurisdiction of the Superior Court of Justice and the considerations outlined by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. The order prohibits the publication by anyone of any information that identifies or may tend to identify the minor parties in this lawsuit, including their names and addresses, their parents’ names, occupations, and more. For complete information concerning the scope of the publication ban, readers are cautioned and directed to read the court’s formal order implementing the publication ban. A copy of the formal order may be obtained from the lawyers for any of the parties or from the court office. AND TAKE NOTICE that anyone who violates the terms of the publication ban ordered by the court may be charged with contempt of court and may be subject to punishment including fine and imprisonment.

F.L. Myers J.

Reasons for Decision

Background

[1] On an urgent basis, the court heard three motions to seal the court file and to ban publication of the identities of the minor children involved in this litigation. An order protecting the privacy of the minor litigants is made below. Some explanation is required of the unusual circumstances.

This Lawsuit

[2] On March 31, 2020 the minor plaintiff, represented by her mother as litigation guardian, issued a statement of claim seeking compensation due to alleged bullying of the minor plaintiff by the two minor defendants while they were all students at Havergal College.

[3] Havergal College is a prestigious private school for girls in Toronto. I use pronouns below in reference to the minor parties without fear of disclosing any information about their identities because the students’ gender is a given from the fact that they attended Havergal.

[4] The lawsuit is at a very early stage. For now, the parties are just beginning to outline their allegations against each other. None of the allegations has been proven. As one might expect, just as the minor plaintiff accuses the minor defendants of bullying, the minor defendants allege that it was the minor plaintiff who was the bully. It is far too early to know what actually happened between the parties. If necessary, that will be determined at a trial sometime in the future.

[5] In the statement of claim, the plaintiffs referred to themselves by the pseudonyms Mother Doe and Jane Doe. However, the plaintiffs named the defendants using their full legal names.

[6] The plaintiffs’ lawyers mistakenly named the minor plaintiff in the body of the statement of claim. They quickly amended the pleading to replace the minor plaintiff’s name with the pseudonym.

[7] Before taking any steps to protect the minor parties’ identities, the plaintiffs or their lawyers sent a copy of the statement of claim and/or the amended statement of claim to the Toronto Star and possibly to other third parties.

The Other Lawsuit

[8] There is a separate lawsuit in which counsel for the plaintiffs, Andrew Rogerson, is also suing the same school, Havergal College, related to alleged bullying of another child. Mr. Rogerson is a party in that case as litigation guardian for a minor child. At the time that the plaintiffs sent their claim to the Toronto Star in this case, the case management judge, Kimmel J., had just heard and had taken under reserve a motion that apparently dealt with, among other things, actions by Mr. Rogerson and his counsel Ms. Salvatore that are alleged to have publicized the identities of a minor in that case in breach of a confidentiality order made by Penny J.

[9] Among the assertions in the motion before Kimmel J., were questions regarding the publication of the details concerning this case in an affidavit of Mother Doe filed by Ms. Salvatore in the other proceeding.

[10] The only relevancy of the other case is in relation to an email that is relied upon by the defendants that I will mention below. But otherwise, I am dealing only with the facts before the court on this motion in this proceeding.

The Scheduling of the Motions before the Court

[11] On Monday, April 6, 2020, the plaintiffs sought urgent relief on a motion brought without notice to the defendants. The plaintiffs delivered an explanatory cover letter from Ms. Salvatore enclosing copies of their statement of claim, amended statement of claim, and a notice of motion, an affidavit of Andrew Rogerson, and a factum, all dated April 5, 2020 (collectively the “April 5 Material”). The motion sought some 30 wide-ranging heads of relief including the sealing of the court file and a publication ban protecting the identities of the minor parties. Prior to my hearing a telephone conference to consider how to proceed, Havergal College and Student 1 brought motions of their own. They too moved to protect the minors’ identities.

[12] Student 1 also moved to appoint Parent 1 as her litigation guardian. That motion was granted on consent of all parties.

[13] By endorsement dated April 6, 2020, reported at Mother Doe v. Havergal College, 2020 ONSC 2137, I scheduled this hearing. After listening to submissions from Ms. Salvatore for the plaintiffs and counsel for the defendants, I ordered:

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, R.R.O. 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.

[Emphasis by underlining added.]

[14] I also ordered a sealing of the court file and a publication ban as follows:

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.

The Plaintiffs’ Breaches of the Scheduling Order

[15] On Wednesday, April 8, 2020, Mr. Laubman delivered an affidavit from the parent of Student 2 as anticipated in my endorsement.

[16] Counsel for the Toronto Star also delivered very helpful, cogent, and concise written legal submissions on April 8, 2020.

[17] Late in the day, the plaintiffs served a new motion record. It mirrored the relief concerning protection of the minors’ identities from the prior material they had delivered without notice. They also continued to seek orders validating service of the statement of claim and validating their amendment of the statement of claim. In support of this relief, they delivered a new affidavit of Mr. Rogerson, co-counsel on this motion, sworn April 8, 2020. As Mr. Rogerson submitted, his new affidavit is generally a shortened version of the one he had delivered in support of the motion without notice.

[18] Service of a new affidavit in support of some of the relief already sought by the plaintiffs was directly contrary to Ms. Salvatore’s confirmation during the scheduling conference that, in seeking on notice some of the relief they had sought without notice, she was content with the existing evidentiary record. It violated my order closing the evidentiary record.

[19] In the evening of April 8, 2020, the plaintiffs also served an affidavit of Mother Doe. It is 30 pages long. In 146 paragraphs, Mother Doe provides very full details of the allegations made against the defendants. She refers to herself and daughter by pseudonyms and continues to refer to the minor defendants by their names.

[20] Counsel for the Toronto Star confirmed that she received the affidavit of Mother Doe on the evening of April 8, 2020. She did not get it from the court as the office was closed when the affidavit was sent to the court by counsel in an email on Wednesday evening. The defendants expressly denied sending it to the press. The plaintiffs did not deny releasing the affidavit to the newspaper.

[21] Not only did serving the affidavits of Mr. Rogerson and Mother Doe violate my timetabling order closing the evidentiary record, my endorsement also made clear that if a party wished to respond to material filed by Student 2 or the Toronto Star, that issue was to be spoken to on the return of the motion. That would have allowed for a discussion of the scheduling effects and fairness of proposed late filing of yet further evidence.

[22] Disclosing the affidavits to the Toronto Star may also have violated the interim publication ban in my April 6th order.

[23] At the return of the motion on April 9, 2020, counsel for Havergal asked the court to refuse to admit the two affidavits served in violation of the scheduling order. In response, the plaintiffs provided no reason for having served them unilaterally in breach of my order and without seeking leave at the return of the motion.

[24] During the course of argument concerning the late filed affidavits, Mr. Rogerson submitted that Mother Doe’s affidavit was background for the purpose of the motion to seal the file and for a publication ban to protect the privacy of the minor parties. The submission cannot have been correct. One who is trying to protect the privacy of minors would not serve a lengthy affidavit full of detailed allegations and some 250 pages of exhibits, using the minors’ proper legal names, and then give it to the press. There was no purpose in serving this affidavit in breach of my order, except to make the plaintiffs’ allegations and the minor defendants’ names public in the press and to do so before the court heard the parties’ requests for anonymization of the pleadings and proceedings.

[25] After hearing submissions, I ruled the two late affidavits inadmissible. They were served in breach of the scheduling order without leave being sought and with no apparent valid reason for having done so.

[26] Notably, the absence of evidence from the plaintiffs did not impinge at all on the availability of the relief in the motions before the court. When I ruled the plaintiffs’ two affidavits inadmissible, for violating the scheduling order, the plaintiffs did not seek an adjournment or express any concern with the adequacy of the evidentiary record. The motions proceeded in the absence of the two improper documents. All parties agreed that the defendants’ evidence provided all of the necessary facts to allow the court to perform the balancing of interests that the law requires.

[27] The defendants ask that the two improperly served affidavits be removed from the court record or sealed. In my view, the affidavits of Andrew Rogerson and Mother Doe dated April 8, 2020 are not and never were intended to be admissible evidence in this proceeding. They were drafted in the guise of court proceedings for ulterior purposes. They form no part of the court’s record.

[28] The defendants also ask that the April 5 Material be removed from the court record or be sealed. It is now apparent that the plaintiffs’ proposed motion without notice was similarly not a bona fide effort to obtain relief from the court in this proceeding. It was not served on the defendants as required by the Rules of Civil Procedure or on the media in accordance with the applicable Practice Direction. It had no realistic chance of being allowed to proceed without notice on virtually all of the relief that was sought. Moreover, despite counsel’s indication to me on April 6, 2020 that the initial affidavit was to be relied upon for seeking some relief at the return of the motion as scheduled on April 9, 2020, the plaintiffs declined to serve that affidavit and instead purported to deliver a new one as discussed above. In my view, the April 5 Material was also drafted in the guise of court proceedings for ulterior purposes. They too form no part of the court’s record.

The Conflicting Public Interests and the Need for Balancing

[29] I do not need to engage in a detailed analysis of the open court principle or the test for banning publication of material filed in a legal proceeding to protect the health of minor litigants. The parties all agree on the relevant legal principles. They are set out comprehensively and elegantly by my colleague Akbarali J. in A.P. v. L.K., 2019 ONSC 4010.

[30] In A.P., Akbarali J. considered the fundamentally important role played by a free and independent press in our democracy. The Toronto Star relies on those considerations as enshrined in the freedom of the press set out in s. 2(b) of the Canadian Charter of Rights and Freedoms.

[31] Justice Akbarali discussed how our open court system empowers the press to provide accurate reporting of court proceedings to the public and thereby contributes to the transparency, accountability, and health of our system of government.

[32] Yet there are times when the public’s “right to know” comes into conflict with other public interests. We recognize, for example, that there is a public interest in protecting the physical and mental health and well-being of children. Children are not yet fully developed adults physically, emotionally, or intellectually. They do not enjoy the same legal rights as adults under our laws. For example, children cannot sue or be sued on their own. Their interests must be represented by adult litigation guardians in a lawsuit like Mother Doe and Parent 1 in this case.

[33] Children are vulnerable both developmentally and legally. They are vulnerable to abuses of their health and of their legal rights at the hands of other children and adults alike.

[34] In this case, all parties agree that publication of the children’s identities and information that would tend to identify them would subject them to emotional harm – whether as a result stigmatization by others or due to the very real risk of cyber-bullying by members of the public who may hear reports of the parties’ unproven allegations and descend upon the minor parties and their families. The public interest requires us to protect children from the risk of emotional harm from abusive, trolling mobs of self-appointed morality police, juries, and executioners from cyberspace.

[35] These very concerns were recognized by the parties in the action being case managed by Kimmel J. in February of this year. At that time, an issue arose concerning the allegations among Jane Doe and the minor defendants in this case. By email dated February 14, 2020, Ms. Salvatore wrote the following concerning the parties in this case to Ms. Rothstein and Ms. Calon for Havergal: [1]

My firm represents [redacted – Mother Doe] and her daughter, [redacted – Jane Doe], with respect to an impending lawsuit against Havergal College; I have carriage of the matter.

With respect to the Affidavit of [redacted – Mother Doe], with Exhibits attached thereto, a protective order on the identical terms to that which His Honour, Justice Michael Penny, made on November 28, 2019, in the context of this matter, is required to protect the identities of [redacted – Mother Doe]; [redacted – Jane Doe] (the bullied child), and her other two children, [redacted] and [redacted]; the two bully children; and any other children named in the Affidavit.

Will the Defendants consent to such a protective order? If so, my office will take the appropriate measures to obtain same.

In light of the need to address the protective order piece, I will hold off on filing this unredacted version of [redacted – Mother Doe]’s Affidavit at this time. Once the protective order is received, issued, and entered, [redacted – Mother Doe]’s Affidavit will be redacted in accordance with same and filed in the public portion of the court file; the attached unredacted version of [redacted – Mother Doe]’s Affidavit will be sealed.

[36] The affidavit under discussion was an affidavit of Mother Doe delivered in the other proceeding. Ms. Salvatore committed to hold off filing the unredacted version pending obtaining a protective order to protect her minor client and the minor defendants.

[37] What I take from Ms. Salvatore’s email is the rather obvious point that as among civil litigation counsel in Toronto, the standard of practice is that before one makes litigation public when children are involved, counsel agree to protective orders to safeguard the children’s privacy. As the author of the email, there is no doubt as to Ms. Salvatore’s acceptance of this imperative for her own client as well as for the minor defendants.

[38] I do not know whether something in the hearing before Kimmel J. drove the plaintiffs to perceive a need to proceed with their new action prior to the ruling of Justice Kimmel being released. What is clear however, is that the material in this action was sent to the press without a protective order being obtained despite Ms. Salvatore’s email.

[39] All counsel agreed before me that Akbarali J. set out the correct analysis of the Supreme Court of Canada decisions that establish a way to balance the competing interests when the open court principle may put at risk other public interests such as the need to protect vulnerable children. She wrote:

[24] To weigh the competing interests, the court applies what is commonly referred to as the Dagenais/Mentuck test:

discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice: see, for example, Toronto Star Newspapers Ltd., at para. 26.

[25] With respect to the first branch of the Dagenais/Mentuck test, the Supreme Court of Canada has found that that the risk at issue must be “real, substantial and well-grounded in the evidence: ‘it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained’”: Toronto Star Newspapers, supra, at para. 27.

[40] Despite there being a degree of speculation in both the nature and risk of the harms feared by the parents in this case, given the plaintiffs’ efforts to make public the defendants’ names and family details, I am satisfied that the risk of harm is proven. The risks are real enough that the plaintiffs are either trying to bring them about or to raise the threat of such harms as a bargaining tool. They released the material to the press despite Ms. Salvatore’s prior recognition that it should be subject to a protective order. The fact that the plaintiffs anonymized themselves and not the defendants is particularly impactful piece of evidence that the plaintiffs feared for their own safety while deliberately exposing the defendants to the risks inherent in publicity. [2]

[41] I agree with Justice Akbarali’s conclusion at para. 37 of A.P. that, “[w]hile there is no evidence of such stigmatization to date, we should not have to wait for damage to be done to guard against it, especially where the interests of children are concerned.” Given the plaintiffs’ efforts to publicize the names and family details of the minor defendants, I am satisfied that the first part of the test is therefore met.

[42] The second part of the test involves a degree of subjective judgment. The court must try to assess whether the benefits to the public interest in protecting vulnerable children by limiting publication of information in a court proceeding outweigh the harm to the public interest in open courts. This involves such questions as whether there are other, less intrusive alternatives available to achieve the benefits sought and whether the steps proposed are proportionate to the harm caused. In my view this type of analysis requires attentions to the details of the interests at play and the relief sought.

Balancing the Competing Interests in this Case

[43] The Toronto Star advanced a nuanced, compassionate approach that was neither absolutist nor shrill. It commenced its submissions with an important contextual pronouncement:

Toronto Star Newspapers Ltd. (the “Toronto Star”) has no intention or interest in publishing information that would identify the minors involved in this litigation. The Toronto Star therefore takes no position on the order sought by the moving party Havergal College, subject to the inclusion of a term that would ensure the media can meaningfully return before this Court to challenge the scope of redactions made by the parties, if necessary.

[44] There was never much doubt therefore, that some relief would be granted to protect the identities of the children. The issue is what the scope of the protections should be. To that end, I note that the plaintiffs sided with the Toronto Star in seeking to limit the scope of the order to the statutory mandatory publication bans applicable in criminal and child welfare proceedings. The minor defendants sought greater protections that were opposed by the plaintiffs and the Toronto Star.

[45] As indicated by the Toronto Star in its opening position, Havergal College proposed a draft order that paralleled some language in the order made by Penny J. in the proceeding before Justice Kimmel. It would anonymize these proceedings by requiring that all documents refer to the minor parties and their families by pseudonyms. It would seal any documents that were not anonymized to date. It would then ban publication of “any information that identifies or would tend to identify the Minor Parties or their family members.”

[46] Interestingly, counsel for the Toronto Star submitted that the process of searching the court file for documents and then trying to determine whether there is a subsisting order sealing each document is cumbersome and leads to much uncertainty. The Toronto Star prefers that there be no sealing order but a clear and narrow publication ban telling the press what they can and cannot report.

[47] I am attracted to this approach. Together with anonymization of documents to be filed, this strikes me as a helpful and balanced process. However, I have concerns with the uncertainty of the language “would tend to identify” that is drawn from statutory publication bans. In my view, it is preferable that there be as much certainty as possible when a court grants injunctive relief. Breaches of court orders are very serious matters that are punishable by contempt of court. It is appropriate to be as specific as possible in the proposed publication ban order to avoid later arguments over whether some detail published was or was not one that would tend to identify a minor.

[48] Counsel for the minor defendants argued for the specific ban on publication of a number of classes of information that they say would tend to identify the children or their families:

a. The names of the children; b. The ages of the children; c. The number of years each child was a student at Havergal; d. The specific school years that each child was a student at Havergal; e. The year each child first went to Havergal and the year each left Havergal (for those who have left); f. Information regarding the families of the students such as their addresses and descriptions of the parents’ occupations; and g. The details of the interactions alleged and harm suffered by each of the parties, such as the plaintiffs’ allegations that she was on the volleyball team with one of the minor defendants, that the minor defendants allegedly coerced her commit suicide, that she was hospitalized, and twice attempted suicide.

[49] The Toronto Star argued that the lawsuit raises at least two issues of vital public interest on which it wishes to report. It identifies the issues of public interest to be “the handling of bullying allegations by private educational institutions, and the response of our judicial system to allegations about such handling.” In no sense would I limit the legitimate interests of the press to just these issues. However, I do find it commendable that the Toronto Star was willing and able to focus on two specific points to make the balancing of interests more concrete in this case.

[50] I accept, of course, the mandate from the Supreme Court of Canada, that I am “to restrict the order as far as possible without sacrificing the prevention of the risk”. See: R. v. Mentuck, 2001 SCC 76 at para. 36.

[51] I agree with Ms. Carver for the Toronto Star that children do not have a right to private legal proceedings before the court. Moreover, I agree with her that the relevant audience to be considered is not limited to the other students at Havergal College. I assume that the classmates of the minor parties and perhaps many others at the school are conversant with the competing allegations and some details of the issues from the parties, the rumour mill, and/or cyberspace. Considering the risk of identification of the minor parties by others who were not from the school community, Ms. Carver advised that Toronto Star has no intention to publish: the years the minor parties left the school; the exact time that the minor parties were students at the school; or the family names or parents’ professions.

[52] The plaintiffs argued for more details to be publishable. Ms. Salvatore specifically objected to Mr. Laubman’s requests at sub-paras. 48(b), (c), (d), (e) and (g) above despite hearing the Toronto Star’s position accepting the limitations in sub-paras. 48 (d), (e), and (f). Mr. Rogerson argued that it would be throwing Charter rights out the window to agree to the limits on publication sought by the defendants.

[53] Like Akbarali J., I have no issue banning publication of the children’s names. However, their ages and the fact that they were in high school at the time of the incidents strikes me as highly relevant to the nature of the public interests identified by the Toronto Star. A story about bullying in a high school is different than bullying in pre-school or an elementary school. The duties may be different. The types of harm may be different. The response society expects from the schools and the court may be different. However, as I am not a news editor, I am not sure that the identification of the precise public interest in publication is a question for me to answer. The Supreme Court of Canada says that I am not to limit publication unless it would prejudice the public interest in protecting vulnerable minors. That is, the more relevant question for me is whether making the details publishable makes the minor parties’ identities more discoverable.

[54] I do not see a significant risk that the general public will be better able to identify the minor parties simply by knowing their ages and grades. While allowing the minor parties ages and grades would go some way toward identifying them internally at Havergal, as noted above, that ship has largely sailed.

[55] I agree with the minor defendants that identification of the dates they attended the school and the dates each may have come or left does tend to identify them personally. In light of Toronto Star’s concession, and despite the plaintiffs’ desire to prevent a publication ban on this information, I am satisfied that the balancing favours the order sought. Banning publication is the only way to protect the minors’ identities and not banning it risks identifying them.

[56] The plaintiffs make much of the identities of the families and the alleged wealth of at least one of them. They allege that the school favours children from privileged families. That allegation is in the pleading and may be pursued as long as it remains there. That does not address however, the risk to the minor parties by identifying their parents’ professions. Mr. Rogerson submits that one of the parents is prominent in the community. If that is so, identifying him by his community works, professional or otherwise, identifies his daughter. The Toronto Star is content that it does not need to publish the parents’ occupations to advance the interests that it has identified. I suppose it can use adjectives like “wealthy” or “prominent” if it chooses to advance the point asserted by the plaintiffs. I find that identification of the parents’ occupations risks identifying the minor plaintiffs. Banning publication is the only way to protect the minors’ identities and banning this information does not sacrifice the public interests identified by the Toronto Star.

[57] The Toronto Star opposes any limits on publishing the details of the alleged bullying and the alleged harms suffered. It says that, for example, the plaintiffs’ assertion that she tried to commit suicide as a result of the minor defendants’ conduct is part of the truthful reportage of the issues before the court. The details are necessary to provide the seriousness of the issues both as existed at the school and as are now before this court.

[58] The detail that some of the parties may have been on the same sports teams evokes images of events that occurred at St. Michael’s College that remain in the public eye today. The plaintiffs rely on the sentencing reasons written by a judge in a criminal case that arose out of the St. Michael’s College events. See: R. v. A., B., and C., 2019 ONCJ 949. Ms. Salvatore argues that the judge in that sentencing decision made the details public and it involves the same broader community as is involved in this school.

[59] I do not see much similarity between the issues before me and the issues that arose before the judge imposing sentence. Sentence was imposed after an accused confessed his guilt and admitted in open proceedings that he committed certain acts. The report of that decision is subject to a publication ban under ss. 110, 111, and 129 of the Youth Criminal Justice Act, S.C. 2002, c. 1. The judge in that case was not confronted with the balancing of benefits and prejudices that is before me. Nothing is admitted in this case. Both sides accuse the other of serious bullying behaviour. All that is before the court today are allegations in pleadings. The court has identified the relevant public interests that are clashing and is working through the balancing of those interests. The statute that applied in the A, B, and C case does not apply to this proceeding. I do not see the relevancy of the recitation of details subject to the statutory publication ban in that sentencing decision.

[60] Applying the relevant test here, I find myself agreeing with the Toronto Star and the plaintiffs that the details are germane and important to the public interests identified by the news organization. Each case is decided on its own facts. It has been said that context is everything. Would I be limiting unduly the Toronto Star’s ability to inform the public about the important issues at play if I limit it to publishing simply that there is a case in the Superior Court about bullying? As discussed above, the more relevant question is whether making the details publishable makes the minor parties’ identities more discoverable.

[61] As I have already said, I do not see the Havergal community as the real audience here. If they hear that there is a case about bullying are they less likely to know which parties are involved than if they hear it involves two students who were on the volleyball team and one attempted suicide? No doubt the detail limits the options of which case it may be if there is more than one. I do not know if there are any other similar cases at the school. Details might also make the case identifiable to some of the health care professionals who helped one party or the other. But I do not think that publishing the details of the alleged bullying conduct or the harm alleged realistically makes the parties’ identities any more discoverable to the public at large.

[62] In A.B. v. Bragg Communications Inc., 2012 SCC 46, the Supreme Court of Canada was concerned with the risk of revictimizing the victim of cyberbullying by publication of her identity in a civil action. The court allowed the applicant to sue anonymously but stopped short of banning publication of all the details alleged. At para. 30 of the decision, Abella J. wrote for the unanimous court:

On the other hand, as in Canadian Newspapers, once A.B.’s identity is protected through her right to proceed anonymously, there seems to me to be little justification for a publication ban on the non-identifying content of the fake Facebook profile. If the non-identifying information is made public, there is no harmful impact since the information cannot be connected to A.B. The public’s right to open courts and press freedom therefore prevail with respect to the non-identifying Facebook content.

[63] In my view, the same logic applies here. The minor parties will be protected by anonymity as much as possible. No one submitted that disclosure of the details of the events alleged presents a real risk of widespread identification of the parties among the general public. Accordingly, I do not find that “salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public” in respect of the details of the events and harms referred to in para. 48(g) above.

Disclosure of Publication by Plaintiffs

[64] In their factum, the minor defendants seek an order:

Requiring the plaintiffs to disclose all non-parties to whom they disclosed the unredacted statement of claim or amended statement of claim prior to April 6, 2020, so that notice of this relief can be provided.

[65] Mr. Laubman argues that without knowing who has received the unredacted documents circulated by or for the plaintiffs there is no way to know who should be alerted to the publication ban being ordered. He argues that if the court is concerned about protecting the minor parties’ privacy, then it should not be making an order that cannot be enforced because people to whom the plaintiffs disclosed the defendants’ identities do not know about the publication ban.

[66] I raised with Mr. Laubman the question of whether strategic discussions about disclosing the pleadings among counsel and the plaintiffs might be privileged. Privilege applies to communications between a lawyer and client seeking or conveying legal advice. I am dubious that factual information that one or more documents were sent to a third-party amounts to communication for the purpose of giving or receiving legal advice. I make no finding however, as Mr. Rogerson chose not to argue this point. He said simply that it was unnecessary for the court to hear this issue now.

[67] I disagree. In my view the issue needs to be resolved to give effect to the orders being made. But I had not decided that it was necessary to hear this issue at the hearing. While many counsel would have argued the point in the alternative, I did not pursue with the plaintiffs the need to do so at the hearing to avoid the risk that they were giving up their opportunity to make submissions on the point. In my view, the fairest outcome is to afford the plaintiffs until Friday, April 17, 2020 to deliver no more than five (5) pages of written submissions on the issue of whether the plaintiffs ought to be ordered to disclose whether they or anyone on their behalfs disclosed to anyone apart from the Rogerson law firm, in whole or in part, any copies of any of their original or amended statement of claim, their motion record delivered for the motion without notice, or their two inadmissible affidavits sworn April 8, 2020.

[68] Mr. Laubman will be entitled to deliver no more than five (5) pages of reply submissions by noon on April 21, 2020.

Order

[69] I grant an order in the form of the draft order provided to me by Mr. Bucholz for Havergal College which the Toronto Star does not oppose. Para. 1(g) is to be omitted as that issue is subject to further submissions referred to in the immediately preceding section.

[70] I also add the following paragraphs between paragraphs 1(d) and (e) of the draft as presented:

1(d.1) For greater certainty and without limiting the generality of the foregoing, the following details are deemed to be “information that identifies or would tend to identify the Minor Parties”:

(i) Their names; (ii) The number of years each was a student at Havergal College; (iii) The specific school or calendar years that each was a student at Havergal College; (iv) The year each first went to Havergal College and the year each left Havergal College (for those who have left); and (v) Their families’ addresses, parents’ names and occupations.

1(d.2) For greater certainty and without limiting the generality of the foregoing, the following details are deemed not to be “information that identifies or would tend to identify the Minor Parties” and therefore are not subject to a ban on publication:

(i) Their ages; (ii) The grade levels that they were in when the incidents that form the subject matter of the litigation occurred. That is, they were in grades 10 and 11. (Nothing herein authorizes publication of their “grades” as that word may be used to indicate their marks or an indication of their performance in any course of study); (iii) The details of the interactions alleged and harm allegedly suffered by each of the parties that forms the subject matter of the litigation, including:

a. whether the Minor Parties were alleged to have participated in any extracurricular activities together; b. that the plaintiffs allege that the minor defendants coerced her to commit suicide; c. that the plaintiffs allege that the minor plaintiff was hospitalized; and d. that the plaintiffs allege that the minor plaintiff twice attempted suicide.

[71] The order is to contain a paragraph providing that the affidavits of Andrew Rogerson and Mother Doe dated April 8, 2020 do not and never have formed part of the court record and are to be expunged from the court’s computer as improperly submitted.

[72] The order is to contain a paragraph providing that the April 5 Material does not and never has formed part of the court record and is to be expunged from the court’s computer as improperly submitted.

[73] Paragraph 5 of Schedule “A” to my handwritten endorsement dated April 6, 2020 does not apply to these motions. Instead the following term applies:

Upon the courthouse reopening to the public fully, each party shall file with the Civil Motions Office a copy of all the material he, she, it, or they delivered electronically for this proceeding, with proof of service, and pay the appropriate fees therefor. This term does not include the April 5 Material and the two inadmissible affidavits dated April 8, 2020 which may not be filed with the court.

[74] This order is effective immediately. Despite para. 7(b) of Schedule “A” to my handwritten endorsement dated April 6, 2020, a formal order shall be signed and entered forthwith. Counsel shall send the formal order approved as to form and content and a clean copy electronically to the Motions Coordinator who will assist with submitting it to Court Services for signing, entry, and return to counsel. If the parties are unable to agree on the form and content of a formal order by noon on Thursday, April 16, 2020, I may be contacted through the Motions Coordinator to convene a case conference to settle the order and to make any other order as may appear appropriate at that time pursuant to Rule 50.13(6).

Other Relief Sought by the Plaintiffs

[75] The plaintiffs’ request to validate their amended pleading is not a motion provided by the Rules of Civil Procedure. The motion to validate service is a motion for a Master. Neither meets the urgency or time sensitivity criteria set out in the Notice to the Profession dated March 15, 2020. I do not hear either motion and therefore there is no order for either. Nothing prevents the plaintiffs from bringing the motion to validate service to the proper court at a proper time.

Costs

[76] Mr. Rogerson submits that since the issues resolved to rather narrow questions of which details were publishable, there should be no costs. He made no further submissions about the costs of the case conference of April 6, 2020 that I had reserved to the April 9, 2020 hearing.

[77] Mr. Bucholz seeks costs for Havergal College of $18,000 all-inclusive on a partial indemnity basis. He argues that the plaintiffs had no urgent basis to issue the claim when they did during the pandemic. He says they could have brought a motion to anonymize the pleading before or after commencing the claim. It was the plaintiffs who caused urgency by publishing the claim to the press. Finally, he submitted that Havergal had to bring its own motion to anonymize the file because the plaintiffs’ purported motion without notice was not known to the defendants and was not served on the press as required in any event.

[78] Mr. Laubman for the minor students seeks costs of $28,000 all-inclusive on a substantial indemnity basis and $20,000 in the alternative on a partial indemnity basis. He argues that the motions were unnecessary and ought to have been resolved. He argues that the plaintiffs conducted themselves improperly and caused unnecessary urgency and costs.

[79] Mr. Laubman argues that the plaintiffs committed at least three improper acts. First, they sent their claim to the press without notice or any protection for the minor defendants’ identities.

[80] In response, Mr. Rogerson invoked a line from pop culture, from the Seinfeld television show and argued that this motion was about nothing. He said that the plaintiffs did what they could to protect the minor parties’ privacy. As soon as they issued their claim, they moved without notice to protect the file.

[81] Ignoring that I have already found that the motion without notice was flawed and not a bona fide proceeding, what was glaringly missing from this submission was the plaintiffs’ intervening act of releasing their unredacted pleading to the press despite knowing of the risk of harm to the minor defendants in doing so.

[82] Mr. Rogerson argued that everyone agreed that the case needs a protective order and the case law on costs show that there should be no costs where the parties are all of the same interest. However, the parties were not of the same interest as the plaintiffs cared only for their own privacy. Despite Ms. Salvatore’s express recognition that material involving the same allegations and issues should be protected before being released to protect all the minor parties, the plaintiffs delivered their pleading to the press with only their own clients’ names protected. They then opposed the minor defendants’ efforts to ban publication of details that even the Toronto Star agreed it should not publish.

[83] Mr. Laubman argues that the second improper act by the plaintiffs was their release of his clients’ motion record to the press in breach of my ban on publication and sealing of the court file on April 6, 2020. He also argues that the attempted delivery of some 500 pages of material at the last minute in the two April 8, 2020 affidavits in breach of my scheduling order is a third wrongful act that caused costs to be incurred improperly or that ought not to have been incurred.

[84] This case involves allegations of bullying among students at a high school. Both sides allege the other engaged in hurtful, severe bullying behaviour at school. I do not know which side may prevail ultimately. I am perplexed however, by the undisputed evidence that the actions of the plaintiffs or their counsel have placed the minor defendants at risk of known and anticipated harm. This is a case about bullying and yet the manner in which the proceeding has been carried in the few days since its inception makes it clear that the threat of publication of the names and private information of the defendants is being used by the plaintiffs as an intimidation tactic. That behaviour cannot and will not be condoned by the court.

[85] Mr. Rogerson was clear in his submissions that he views Havergal and the families of the minor defendants as so wealthy that civil litigation poses no real threat to them. He advised the court of substantial liquid assets held by the school and cast aspersions on at least one of the defendants’ family based on their perceived wealth. He submitted that there should be no costs awards against his client, a single mother of teenagers, out of concern that she may be precluded from proceeding with this lawsuit against the Goliath of wealth arrayed against her.

[86] Even if the plaintiffs felt they needed to start the claim using the defendants’ names, there was no legitimate reason for them to release their pleading to the press before bringing a motion to anonymize the claim. The proposed motion without notice was disingenuous at best. Moreover, as I have noted earlier in these reasons, the two late affidavits were not evidence for these motions. Serving them breached my order and contravened Ms. Salvatore’s representations to her colleagues and to the court. Their purpose was to obtain a tactical advantage in this litigation over the defendants.

[87] What is particularly troubling is that since Mr. Rogerson is a party and Ms. Salvatore is his counsel of record in the other action involving allegations of bullying against Havergal and another minor student, they were well aware of the order of Justice Penny in that action and they knew of the concern of identifying minors in this action as demonstrated by Ms. Salvatore’s email. Instead of seeking a protective order on consent, they deliberately chose to commence an action at a time when the court is closed to all but urgent matters and then counsel for the plaintiffs breached a court order, demonstrated flagrant disrespect for the process of the court, and caused costs to be incurred unnecessarily, all to further some perceived tactical advantage.

[88] The principles relating to the determination of costs are readily summarized. The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[89] In Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, the Court of Appeal discussed the scale of costs as follows:

The applicable principles can be summarized as follows:

a. the fixing of costs is discretionary and the motion judge’s costs award attracts a high level of deference – it should be set aside on appeal only if the trial judge erred in principle or if the award is plainly wrong: see Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, 2004 SCC 9, at para. 27; b. costs on a substantial indemnity basis should only be awarded “where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”: Young v. Young, [1993] 4 S.C.R. 3, 1993 SCC 34, at p. 134; and c. the kind of conduct that will justify an elevated level of costs is not limited to conduct in the proceedings and can include the circumstances that gave rise to the litigation: Mortimer v. Cameron (1994), 17 O.R. (3d) 1 (C.A.), at p. 23; Clarington (Municipality) v. Blue Circle Canada Inc., 100 O.R. (3d) 66, 2009 ONCA 722, at para. 30.

[90] The plaintiffs succeeded in fending off the request from the defendants to ban publication of the details of the allegations and harm. Frankly it was the measured submissions of the Toronto Star that tipped that balance. The plaintiffs’ submissions had little credibility given their efforts to publish the defendants’ names and their submissions supporting publication of details that the Toronto Star did not even seek to publish.

[91] I reject Mr. Rogerson’s submission that the motion was about nothing. In my view, this is a case in which the plaintiffs’ conduct of the proceeding was reprehensible and caused the other parties to incur costs that never should have been incurred. The disingenuousness of the plaintiffs’ alleged concern for the privacy of the children was belied by their acts. They deliberately made public the minor defendants’ identities knowing of the risk of harm to them in doing so and despite Ms. Salvatore’s email. Together with their creation of urgency and breaches of the scheduling order, I find that the plaintiffs abused the process of the court for ulterior purposes.

[92] The plaintiffs did not provide me with a quantum of the costs that they incurred. They have therefore limited my ability to assess what amount they ought reasonably to have expected. I do note that they purported to prepare three lengthy affidavits, two lengthy motion records, and Ms. Salvatore must have spent substantial time creating her draft order that was ultimately too cumbersome and too tied to criminal law and child welfare statutes to be helpful. However, this was not a quick little proceeding. It was a substantial strategic effort to engage in a multi-pronged process to try to achieve some strategic end involving the release of information. The plaintiffs made express submissions about the relative wealth of the parties opposite and plainly tried to catch them with a strategy that the wealthier parties could not counteract. However, they did so using very improper means.

[93] In my view this is a fit and proper case in which the plaintiffs should pay the defendants’ costs and do so on a substantial indemnity basis where sought.

[94] Overall, in my view, the costs sought by Havergal College are too high. Their position was limited to anonymizing the proceeding. The Toronto Star agreed. While I have no doubt they reasonably acted to protect their position, as they seek only partial indemnity for their costs, bearing in mind proportionality, the plaintiffs ought reasonably to be liable for costs Havergal of $12,500 all-inclusive on partial indemnity basis including the reserved costs of the case conference on April 6, 2020.

[95] The minor defendants were the real opposition for the plaintiffs. In my view, full indemnity costs of $25,000 are reasonable and ought reasonably to have been anticipated given the deliberate attack made upon the minor defendants by the plaintiffs. Adjusting to 90% for substantial indemnity scale, leads me to award costs of $22,500 all-inclusive to the minor defendants including the reserved costs of the case conference on April 6, 2020.

[96] Mr. Rogerson submits that the plaintiffs will not be able to pay these costs and proceed with the litigation. However, a lack of resources is not a license for inappropriate litigation conduct. See: Apollo Real Estate v. Streambank Funding Inc., 2018 ONSC 392, at para. 46 and Abbott v. Reuter-Stokes Canada Ltd. (1988), 32 C.P.C. (2d) 161 (Ont. H.C.). Rule 57 specifically provides that in exercising its discretion on costs, the court may take into account the conduct of a party as well as whether any step taken was improper. If the ability of his clients to pay costs was truly an important consideration, counsel ought to have considered the best and most cost-effective way to obtain a protective order in this action on consent of the other parties. The plaintiffs instead decided to embark down a path that was abusive. It resulted in a waste of lawyer time and court time on matters that should have gone on consent. They cannot now be heard to say that costs ought not to be awarded against them because they cannot afford to pay. To accept that argument would encourage the type of behaviour that occurred in this case without any sanction by the court. The situation in which the plaintiffs find themselves is of their own making.

[97] Finally, I am compelled to comment on the conduct of Ms. Salvatore. In my endorsement of April 6, 2020, I made specific reference to her confirmation that the plaintiffs would not be filing any further evidence on the motions. I had offered her time to consider whether she wished to file further material and she declined this offer and made a clear representation that there would be no further evidence filed by the plaintiffs. The court and opposing counsel relied on this submission. Ms. Salvatore then preceded to file additional material in clear breach of my order and her undertaking. She is an officer of the court and as such, she owes a duty to the court to be candid and to conduct herself with integrity. Counsel’s obligations as an officer of the court transcends instructions received from clients or employers.

Released: April 14, 2020

Court File and Parties (Duplicate)

COURT FILE NO.: CV-20-638954 DATE: 20200414 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MOTHER DOE, personally, and JANE DOE, AN INFANT, by her LITIGATION GUARDIAN, MOTHER DOE Plaintiffs – and – HAVERGAL COLLEGE, SEONID DAVIS, PARENT 1, Litigation Guardian for STUDENT 1, and STUDENT 2 Defendants

Reasons for Judgment

F.L. Myers J.

Released: April 14, 2020

Footnotes

[1] Where the memo before the court was redacted, I have inserted the pseudonyms of the parties being referred to where relevant.

[2] Mr. Rogerson argued that the defendants had to be named to ensure that they could be served and that the legal proceeding properly identified the parties. This is not correct. It is common practice in Toronto for counsel to seek leave to commence proceedings using pseudonyms for all parties. A title of proceeding could readily have been created and then anonymized before the service or release to the public of any of the pleadings or proceedings. This is the usual and ordinary standard of civil litigation practice in Toronto when there are risks of adverse publicity for children in the litigation.