Court File and Parties
COURT FILE NO.: CV-19-629398 DATE: 20200414 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANDREW ROGERSON et al, Plaintiffs AND: HAVERGAL COLLEGE et al, Defendants
BEFORE: Kimmel J.
COUNSEL: Angela Salvatore, for the Plaintiffs Linda Rothstein and Ren Bucholz, for the Defendants Andrea Gonsalves, for the non-party family of the minor child referred to in these proceedings pursuant to the November 28, 2019 Order of Penny J. as Student “Q”
HEARD: April 3, 2020
Endorsement – Motion Regarding Contents of Plaintiffs’ Affidavits Sworn March 13 and March 22, 2020
Procedural Context and Summary of Outcome
[1] This action was assigned to me by Firestone RSJ for case management under Rule 77 on the consent of the parties. The plaintiffs claim relief in this action arising from the manner in which the defendant school and certain of its administrators and teachers handled the alleged bullying of Mr. Rogerson’s daughter by another student who is identified as Student Q in these proceedings.
[2] This motion by the defendants and supported by the non-party family of Student Q seeks to have certain affidavits and exhibits filed by the plaintiffs removed from the court file and/or redacted and sealed to protect the confidentiality of minor children who are or were students at the school (and for other related relief). This motion was originally scheduled for an urgent hearing on April 1, 2020 by endorsements of Myers J. made on March 30, 2020. This motion was adjourned to allow for a second, intervening, urgent motion by the plaintiffs seeking my recusal. That second urgent motion was heard and decided on April 2, 2020 (with reasons later released, see Rogerson v. Havergal, 2020 ONSC 2164). [1] The within motion was heard the following day.
[3] On November 28, 2020, Penny J. made an order for the confidential treatment of information that identified or might identify the alleged bully child in this action, who since the making of that order has been referred to in these proceedings as Student Q. Student Q and her family are not parties to this action. They did participate in the motion before Penny J, having been granted standing to do so by direction of Archibald J. made November 12, 2019.
[4] The Penny Order is central to the issues raised on this urgent motion. The defendants and the non-party family of Student Q have raised concerns about the contents of two affidavits of Mr. Rogerson (sworn March 13, 2020 and March 22, 2020) that they say include information about Student Q in breach of the Penny Order. The defendants say these affidavits also contain information that offends the spirit of the Penny Order by referring to personal information about six other minor children whose identity is, or may tend to be, disclosed in these Rogerson affidavits. Further, plaintiffs’ counsel has confirmed that they will seek similar confidentiality protections for the identity of one of their other minor clients and her family who have been inadvertently named in these Rogerson affidavits.
[5] The Penny Order requires, inter alia, that:
a. [a] all documents filed in Court and in the public record in this matter refer to “Student Q” only as such and not by her name or any other pseudonym; b. [b] all documents filed in Court and in the public record in this matter be redacted for any information that identifies or that would tend to identify Student Q, including but not limited to, the initial(s) of Student Q’s name and any information that would tend to identify her family; c. [f] there shall be a ban on publication of the name of Student Q, Student Q’s family members or any information that identifies or would tend to identify Student Q or Student Q’s family members, and that Student Q be referred to only as such and not by any other name or pseudonym; d. [g] any document filed in Court in this proceeding…that identifies or would tend to identify Student Q or Student’ Q’s family members, be treated as confidential, sealed and not form part of the public court file; e. [h] any document filed in Court and that is subject to the sealing order in subsection (g), above, will also be filed in Court and in the public record having been appropriately redacted according to subsection (b), above.
[6] In his endorsement of November 28, 2019, Penny J. found, relying on prior cases (e.g. A.P. v. L.K., 2019 ONSC 4010 and Danso v. Bartley, 2018 ONSC 4929, at paras. 52 and 55), that the privacy interests of children are of superordinate importance. He further observed that “limiting the open court principle when necessary to protect children recognizes that children are vulnerable, do not choose to become involved in legal proceedings, and for the most part have no agency to protect their own interests”, noting that the stigma and harmful effects of labelling a non-party seven-year old child (Student Q) a “bully” were obvious.
[7] Despite various clarifications that have been provided by the plaintiffs since the defendants brought this motion, I find that there remains in the court file material that contains information that identifies or tends to identify Student Q, as well as other students or former students of the school. Accordingly, I have granted certain of the relief requested by the defendants and the non-party family of Student Q on this motion, as detailed at the end of these reasons.
Background to the Motion
[8] The procedural background to this motion is relevant to some of the relief sought and provides important context for this motion. I will review it in some detail.
[9] At a settlement conference that I presided over on December 19, 2019, the parties agreed to a schedule that included documentary discovery, the exchange of in-chief affidavits and out of court cross-examinations, among other interlocutory steps, leading to a summary trial that was to be scheduled on consent to be heard in May 2020.
[10] The parties exchanged their affidavits of documents in January 2020. On February 11, 2020, the defendants delivered to the plaintiffs the documents listed in Schedule “A” to their productions. The productions of the defendants included what the defendants considered to be highly confidential school records of both Mr. Rogerson’s daughter, who is a plaintiff in this action, and Student Q (the “School Records”).
[11] At the time of delivery of those productions, counsel for the defendants advised in their February 11, 2020 letter to plaintiffs’ counsel that they intended to seek urgent relief from the court in the event that the plaintiffs disclosed any of Grace’s or Student Q’s confidential School Records to anyone other than the plaintiffs’ expert witness, Dr. Peplar. The defendants also advised at that time that they intended to seek an order over the entirety of any of the confidential School Records that might become exhibits at trial.
[12] One of the deliverables of the plaintiffs under the December 19, 2019 schedule was the in-chief affidavit of Andrew Rogerson. It was originally to be served on the defendants on February 7, 2020. That Rogerson in-chief affidavit had not been served by the time of the February 19, 2020 case conference. At that case conference, the date for service of the complete affidavit with all exhibits was extended to February 24, 2020 at 12:00 p.m. on consent of all parties. At the February 27, 2020 case conference, the Rogerson in-chief affidavit had not been served. By order dated February 28, 2020 the time for its delivery was extended to the close of business on March 4, 2020. At the March 12, 2020 case conference, the defendants still had not been served with the Rogerson in-chief affidavit and the plaintiffs asked for a further extension for the delivery of this affidavit, which was granted to March 13, 2020. The plaintiffs agreed that this new date would be peremptory to them since it was the third extension they had requested. This was indicated in the court’s March 13, 2020 endorsement, which stated as follows:
On consent, a further extension as granted for the time for delivery of Mr. Rogerson’s in-chief affidavit for trial. His sworn affidavit together with exhibits is to be delivered by March 13, 2020. Paragraph 2 of my February 28, 2020 Order should be read as having been amended accordingly. Since this is the third extension (the original delivery date having been February 7, 2020), counsel for the plaintiffs agreed that this new date is peremptory.
[13] The trial dates and pre-trial dates that had been scheduled for April and May had to be vacated after the plaintiffs advised that they wished to deliver an amended statement of claim. I ruled that they required leave to do so since the defendants were not consenting and had raised objections to the proposed amendments. The timetable for delivery of materials for this motion to amend the statement of claim was set on consent at a March 12, 2020 case conference and detailed in my March 13, 2020 endorsement.
[14] The expectation is that the Rogerson in-chief affidavit and the statement of claim, in whatever form it is permitted, will frame the issues to be decided at trial from the plaintiffs’ perspective and will inform the defendants’ response as well as the parties’ positions regarding the timing and form of the trial and any other interlocutory steps. My March 13, 2020 endorsement provided for a further case conference and timetabling discussion to take place at the conclusion of the hearing of the plaintiffs’ motion for leave to amend their statement of claim.
[15] An in-chief Rogerson affidavit sworn March 13, 2020, without exhibits, was sent by email to the defendants just before midnight on March 13, 2020. Preliminary objections were raised by the defendants to the contents of this Rogerson in-chief affidavit and they sought confirmation from the plaintiffs in an email sent on March 14, 2020 that it would not be filed with the court. Plaintiffs’ counsel initially responded only to the objections that were directed to the timing of the service of this affidavit (without exhibits).
[16] Later in the day on March 14, 2020, at 5:35 p.m. counsel for the plaintiffs provided defendants’ counsel with an electronic link to the Rogerson in-chief affidavit sworn March 13, 2020 that appended what were said to be the exhibits (comprising 735 pages in total). Plaintiffs’ counsel followed up with an email at 5:41 p.m. indicating disagreement, in general terms, with the defendants’ objections and a promise to respond shortly to those objections. Mr. Rogerson’s March 13, 2020 affidavit with exhibits will be referred to as the “Rogerson in-chief affidavit.” It was later discovered (on or after March 31, 2020) that there were two different versions of the exhibits appended to this affidavit. Both versions are referred to as the “Rogerson in-chief affidavit”. It will be apparent from the context which version is being referred to.
[17] Plaintiffs’ counsel wrote on March 17, 2020 seeking further productions from the defendants from the School Records of Student Q. This letter did not respond to the request for confirmation that the Rogerson in-chief affidavit had not been filed. Counsel for the defendants wrote again at 4:39 p.m. on Friday March 17, 2020 indicating in general terms that they had various concerns with the Rogerson in-chief affidavit, namely that it was: “improper, contains inadmissible hearsay and opinion, and attempts to circumvent the implied undertaking rule, orders of the court and [plaintiffs’ counsel’s] own undertakings not to advance certain claims against various non-parties.” They once again sought confirmation from plaintiffs’ counsel that this affidavit would not be filed with the court. The defendants’ counsel sent a follow-up email on Monday March 20, 2020 at 10:21 a.m. again asking plaintiffs’ counsel to confirm that the Rogerson in-chief affidavit had not been filed with the court.
[18] Plaintiffs’ counsel wrote on March 20, 2020 indicating that the defendants’ objections to the Rogerson in-chief affidavit should be dealt with by the trial judge and that the prospect of objections having to be ruled upon would not prevent them from filing the affidavit. The question about whether the Rogerson in-chief affidavit had been filed was not answered in this letter.
[19] On March 22, 2020 plaintiffs’ counsel served a second affidavit from Mr. Rogerson that appended two previously delivered affidavits from individuals other than Mr. Rogerson, which the defendants had already objected to the admissibility of. My February 28, 2020 endorsement attaching minutes from the February 19, 2020 case conference contemplated that there would be a motion to determine the admissibility of those previously delivered affidavits prior to the trial. In her March 22, 2020 email, plaintiffs’ counsel wrote:
The exhibited Affidavits are heavily redacted for the names and any identifying information of [the named affiants and their family members] with pseudonyms in their place.
You will note that the Affidavits of [the named affiants], already served upon you, are unredacted.
The purpose of my client’s herein Affidavit is only to allow the Affidavits of [the named affiants] to be filed in the public portion of the court file.
[20] On March 23, 2020 at 1:54 p.m. counsel for the defendants wrote to the court to advise that it appeared that the plaintiffs intended to file, or had already filed in the public court record, multiple affidavits from Mr. Rogerson that did not comply with orders of the Court or the procedures that had been set out at previous case conferences. In addition to the concerns about the timing of the service of the Rogerson in-chief affidavit, the defendants noted that the affidavit did not comply with the Penny Order because Student Q and the family of Student Q were identified in that affidavit, or it contained information that appeared designed to identify them. Concerns about the inclusion in the exhibits of confidential School Records were also noted (among other concerns going to admissibility that are not the focus of this motion). The defendants requested a direction from the court that the plaintiffs confirm that they had not filed the Rogerson in-chief or March 22, 2020 affidavits and that those affidavits had not been sent to any non-parties.
[21] The next morning on March 24, 2020 at 9:43 a.m. the court indicated that it would be helpful to know whether the Rogerson affidavits that were the subject of the March 23, 2020 letter had been filed in the public court record, and to know what the plaintiffs’ intentions were in that regard and generally regarding any public dissemination of that material.
[22] On March 24, 2020 counsel for the defendants provided a more detailed account of their objections to the Rogerson in-chief affidavit and to his March 22, 2020 affidavit. It was noted that plaintiffs’ counsel had herself acknowledged on February 14, 2020 that a protective order would be needed, identical to the Penny Order, to protect the identity of the six other minor children whose identities were disclosed in one of the affidavits that was appended to the Rogerson March 22, 2020 affidavit, yet they were named in the Rogerson in-chief affidavit. This letter to the court quoted from the February 14, 2020 correspondence and undertaking of plaintiffs’ counsel as follows:
In light of the need to address the protective order piece, I will hold off on filing this unredacted version of [the named affiant’s affidavit] at this time. Once the protective order is received, issued and entered, [the named affiant’s affidavit] will be redacted in accordance with same and filed in the public portion of the court file; the attached unredacted version of [the named affiant’s affidavit] will be sealed.
[23] On March 25, 2020, there still having been no response from plaintiffs’ counsel, and recognizing that since the March 15, 2020 Notice to the Profession the operational constraints that litigants are working under during the COVID-19 pandemic had made accessing the court file cumbersome, the court confirmed to all counsel that the court file contained a 3-volume affidavit of Andrew Rogerson sworn March 13, 2020 with exhibits that appeared to have been filed in hard copy with the court on March 20, 2020.
[24] The court indicated that copies of the filed affidavits could not be accessed remotely and advised that something must be done immediately if there were any materials in the court file that offended the Penny Order, noting that there may be concerns about the identification of other minor students as well.
[25] After receiving these communications from the court, plaintiffs’ counsel confirmed on March 25, 2020 that the March 13, 2020 Rogerson affidavit with exhibits had been filed. The plaintiffs indicated that it was their position that all of the plaintiffs’ affidavits in the court file complied with the Penny Order and that the exhibits had been appropriately redacted by plaintiffs’ counsel, except where they had relied on redactions made by the defendants in the defendants’ productions that were appended as exhibits. The plaintiffs in that same correspondence proposed to redact and replace eight paragraphs of the Rogerson in-chief affidavit to anonymize the identity of the affiants of the other affidavits appended to the Rogerson March 22, 2020 affidavit.
[26] The Rogerson in-chief affidavit appends as Exhibits “V”, “W”, “Y”, “AA”, “LL”, and “XX” all of the confidential School Records of Mr. Rogerson’s daughter and Student Q that were produced by the defendants on February 11, 2020. Counsel for the family of Student Q was copied on the various correspondence identifying the concerns about the Rogerson in-chief affidavit, in accordance with my direction at the February 19, 2020 case conference that counsel for the family of Student Q should be copied on inquiries pertaining to Student Q.
[27] Counsel for the family of Student Q wrote to plaintiffs’ counsel on March 23, 2020 asking for a copy of the Rogerson in-chief affidavit and for an undertaking that it not be filed pending further directions from the court, in light of the concerns that had already been raised by defendants’ counsel. Plaintiffs’ counsel provided a copy of the March 13, 2020 Rogerson affidavit to counsel for the family of Student Q on March 25, 2020. Counsel for the family of Student Q wrote to the court the next day setting out concerns about the contents of that affidavit and exhibits and about the possibility that it was in the public court file.
[28] Mr. Rogerson swore an affidavit on March 31, 2020 in response to this motion. The electronic version of that affidavit at paragraph 35 provided a link to the version of his in-chief affidavit that the plaintiffs filed with the court on March 20, 2020. The defendants compared this to the version that was served on them on March 14, 2020 and determined that the exhibits appended were different. As detailed in an April 1, 2020 affidavit of Charlotte Calon, until they accessed the link contained in the March 31, 2020 Rogerson affidavit, the defendants were operating on the understanding that the Rogerson in-chief affidavit that they had been served with on March 14, 2020 was the same as the affidavit that had been filed with the court. It was discovered upon their review of the affidavit in the link provided that some, but not all, of the exhibits about which the defendants had concerns had been redacted in the court-filed version of the Rogerson in-chief affidavit.
[29] Even though some of the offending materials that the defendants were concerned about in the version of the Rogerson in-chief affidavit they were served with had been redacted in the as-filed version (for example an 11-page September 30, 2019 email that Penny J. had specifically ordered redacted to remove information describing Student Q’s family in detail), the defendants maintain that there remain concerns with the version of the Rogerson in-chief affidavit that the plaintiffs filed in the public court file, including but not limited to the exhibits that appended the confidential School Records of Mr. Rogerson’s daughter and Student Q.
[30] At the hearing of this motion on April 3, 2020, counsel for the plaintiffs confirmed that the March 22, 2020 Rogerson affidavit had not been filed in the public court file, and that it never would be in its unredacted form. The court was advised that the plaintiffs intend to seek leave to anonymize the minor children identified in that affidavit and the affidavits appended as exhibits and to replace their names with pseudonyms, if that is not granted as a term of my order on this motion. The defendants agree that if the affidavits appended to the Rogerson March 22, 2020 affidavit are ruled admissible (on the motion that my February 28, 2020 endorsement provides is to be scheduled to determine that very question), then they should be anonymized in a manner consistent with the Penny Order, as should the identity of any other minors in any materials placed in the public court file.
Standing of the Family of Student Q
[31] The plaintiffs consented to the standing of the family of Student Q for purposes of the motion for a protective order in favour of the family of Student Q that was argued in November 2019 and that resulted in the Penny Order. Their consent was for purposes of that motion only and they oppose the request of the family of Student Q to be granted standing on this motion.
[32] The plaintiffs first protested that the family of Student Q had already been elevated to party status by an email from the court on March 26, 2020 indicating that if the defendants or the family of Student Q wished to bring an urgent motion, they had to follow the established protocol for doing so under the March 15, 2020 Notice to the Profession, and by the subsequent March 30, 2020 endorsement permitting this motion to be brought and timetabling the delivery of materials for it. Neither the court’s direction nor its triage order granted status to the family of Student Q. The issue of their standing was argued at the April 3, 2020 hearing.
[33] The plaintiffs argue that the test under Rule 13.01 for granting intervenor status must be met for the family of Student Q to be heard on this motion and that they should be exposed to costs if they are added. The plaintiffs concede that the family of Student Q has an interest in the subject matter of this motion and that they could be adversely affected by the court’s ruling (which, in turn, will depend on the court’s determination of whether the plaintiffs have complied with the Penny Order that was made for the benefit of the family of Student Q). However, the plaintiffs argue that the test is not met because their intervention will unduly delay or prejudice the determination of the rights of the named parties and the request for standing should be denied by analogy to the principles applicable under sub-Rule 13.01(2). See Terratec Environmental Ltd. v. Melancthon (Township), at paras. 12-14.
[34] The plaintiffs further argue that the family of Student Q has been in regular communication and collaboration with counsel for the defendants and their interests can be adequately protected by the defendants. They say that the concerns of the family of Student Q have all been raised by the defendants already. The plaintiffs contend that it is unfair and imposes undue expense for the plaintiffs to have to respond to attacks backed by the resources of two law firms. The plaintiffs argue that the strategy of the defendants has been to overwhelm the plaintiffs with their considerable financial resources and that permitting the family of Student Q to be involved would overly complicate the prosecution of this case to the detriment of the plaintiffs and would thus be unfair and inequitable.
[35] The plaintiffs also contend that if the family of Student Q has concerns about the manner in which the defendants’ productions that are appended to the Rogerson in-chief affidavit have been redacted, that is something that they should take up with the defendants who did the initial redactions.
[36] The family of Student Q relies on the same grounds for standing to appear on this motion as on the motion before Penny J. These grounds are tied to the concerns about the need to protect the privacy and confidentiality of the identity of Student Q, an eight-year old child whose conduct is at the centre of this action even though neither she nor her family are parties to it. Penny J. recognized that there was a need for the family of Student Q to be represented on the motion before him in his endorsement, and they maintain that the need is equally or more present on a motion that seeks to enforce the very protections that he put in place for their benefit.
[37] The family of Student Q is not seeking intervenor status in this action. They ask to participate in this motion because it seeks to ensure compliance with the Penny Order, which was made for the express purpose of protecting their interests. They also argue, by analogy, that they meet the equivalent requirements on this motion as would apply for the granting of intervenor status in an action. See Peixeiro v. Haberman (1994), 20 O.R. (3d) 666, at para. 8.
[38] I agree. Their status on this motion is derived from the status that they were granted on that prior motion. Further, the family of Student Q was required to file their material in support of this motion on the same time line as the defendants and they did not make any adjournment requests. Their participation cannot be said to have caused any delay. The submissions of counsel for the family of Student Q were limited to matters specific to their perspective and the concern about the impact of the disclosure of Student Q’s identity in the court filed version of the Rogerson in-chief affidavit. The family of Student Q did not make or repeat the arguments of the defendants, but rather supported and supplemented them in an entirely appropriate manner.
[39] The plaintiffs are equally accountable to the family of Student Q as they are to the defendants for anything in the Rogerson in-chief affidavit and exhibits found to be offside the Penny Order (discussed below). That accountability arises from an existing court order. Any expenses the plaintiffs incur in addressing these concerns are due to their own actions and there is no injustice or inequity in the plaintiffs having to respond and be accountable to both the defendants and the family of Student Q for this.
[40] Further, the plaintiffs were on notice of the intention to seek extra protections over the confidential School Records of Student Q. The interests of the family of Student Q in protecting those records is obvious given what they are comprised of (as discussed in more detail below). The fact that these confidential School Records are not automatically protected under s. 266(2) of the Education Act [2] because Havergal College is not a public school underscores the need for the family of Student Q to be given the opportunity to seek additional protections.
[41] For all of these reasons, it was important for the court to hear and consider the perspective of the family of Student Q in the determination of this motion. I find that the court’s consideration of the perspective of the non-party family of Student Q on this motion does not cause any injustice to the named parties.
[42] The standing granted to the family of Student Q is specific to this motion. They have not asked for or been granted intervenor status under Rule 13 or standing to participate in the action more generally. Their interests and ability to participate will be determined on an ad hoc basis as issues arise in the action. However, the court and the parties cannot ignore that, as long as Student Q’s behaviour continues to be a central feature in this action, Student Q and her family will need to be given the opportunity to protect their privacy and any other of their interests that are engaged.
Argument and Analysis of Each Head of Relief Sought on this Motion
a) Striking the Rogerson in-Chief Affidavit and its Removal from the Court File
[43] There are two primary grounds raised by the defendants in support of this relief:
a. That it was served late after a third indulgence that was peremptory to the plaintiffs for doing so; and b. It contains information that breaches the Penny Order in that it identifies or would tend to identify Student Q and her family.
[44] In response to the first ground, the plaintiffs argue that the affidavit was served on March 13, 2020 (albeit without exhibits) just prior to midnight, consistent with the practice in the tax court for filing deadlines. Plaintiffs counsel did not appreciate that the court’s February 28, 2020 order with a filing deadline of March 4, 2020 (later extended to March 13, 2020) had specified service of the affidavit together with all exhibits by close of business. The plaintiffs also explained that they were having difficulty organizing the voluminous exhibits. The plaintiffs argue that this was what led to the delay in the service of the complete affidavit with exhibits until the end of the following day.
[45] The plaintiffs contend that the court should exercise its inherent discretion and grant an indulgence for the late service of this affidavit even though the deadline was peremptory to them, having regard to the principles set forth in the case of LSUC v. Igbinosun, at para. 43. Although I do not see the analogy that the plaintiffs ask me to draw from this case, which was decided on principles of natural justice and procedural fairness in the administrative law context, the lateness of the Rogerson in-chief affidavit is not the basis on which I am going to decide whether it should be struck. However, its late filing is relevant to my consideration of the other orders requested by the defendants that are discussed later in this endorsement.
[46] In response to the second ground, the plaintiffs submitted in their written materials that the Rogerson in-chief affidavit and exhibits filed with the court contain redactions that are compliant with the Penny Order. It is clear from the plaintiffs’ own submissions and a review of the version of the Rogerson in-chief affidavit that was filed that this is not the case.
The Acknowledged Need to Anonymize the Names of Non-Party Minor Children
[47] Plaintiffs’ counsel conceded that, by inadvertent error, her office failed to redact in the Rogerson in-chief affidavit the names of her client and family members in another action who wish to remain anonymous in both actions. The plaintiffs also concede that there are three other minor children’s names mentioned in the Rogerson in-chief affidavit. Plaintiffs’ counsel undertook in her February 14, 2020 correspondence to protect the privacy of these minor children by anonymizing their names. The plaintiffs now seek the court’s leave to make redactions to eight paragraphs 257 through 263 and 307 of the Rogerson in-chief affidavit to give effect to this undertaking.
[48] These errors in the Rogerson in-chief affidavit and the need to remediate them were identified by plaintiffs’ counsel on March 25, 2020. The plaintiffs say they have not been able to file replacement pages because of the March 15, 2020 Notice to the Profession under which we are operating. Plaintiffs’ counsel indicated that they would make every effort to have the paragraphs containing this identifying information replaced as soon as the filing restrictions are lifted. In the meantime, they suggest that some comfort should be taken from their understanding from the filing clerks that it can take a long time for materials filed to find their way into the court file.
[49] The plaintiffs clearly recognize the importance of minor children’s privacy interests, especially those who are not party to the litigation. This is something that all appear to agree upon. The court approves the anonymization of all names and identities of minor children and their families in the existing and any future materials filed with the court in this proceeding. This applies to the names or identities of minor children (including Student Q) that appear in paragraphs 257 through 263 and 307 and elsewhere in the Rogerson in-chief affidavit.
[50] This direction by the court is consistent with the reasoning behind the Penny Order and the case of A.P. v. L.K. relied upon by him and cited by all of the participants on this motion. In that case, a broad publication ban was ordered to apply to: “any information that identifies the children, including their names, dates of birth, addresses, school(s), images or voice”. The names of parents (who were the parties to that proceeding) and their children were all anonymized.
Non-Compliance With the Penny Order
[51] Although the list of alleged infringements of the Penny Order is shorter than it was when the motion was brought (based on the now identified as-filed Rogerson in-chief affidavit), there remain some disputed paragraphs of the affidavit and contents of exhibits. The plaintiffs do not acknowledge all of the concerns that have been identified by the defendants and the family of Student Q with respect to the Rogerson in-chief affidavit and its compliance with the Penny Order.
[52] The additional impugned paragraphs of the Rogerson in-chief affidavit are paragraphs 92 to 95 and paragraph 308. Paragraphs 92 to 95 contain descriptive details about the various roles that Student Q’s parents have played at the school. Paragraph 308 contains information about the number of times Student Q’s pictures appears on the school’s Facebook page, and the background of the pictures that she appears in. The plaintiffs argue that these descriptions do not identify Student Q. The defendants and the family of Student Q say that they tend to identify Student Q and her family and that is expressly prohibited by the Penny Order.
[53] This lawsuit seeks to label Student Q as a bully. That is made clear in the Rogerson in-chief affidavit. This heightens the concerns of the family of Student Q that the Penny Order be complied with so that there is nothing that identifies or tends to identify her in the public record. Student Q and her family are uniquely impacted by the public filing of this material, this court having already determined in the endorsement of Penny J. that “it is obvious that there is a serious risk to her privacy interests” and that “disclosure of the identity of Student Q will result in stigmatizing which will follow her and likely cause irreparable and emotional harm.”
[54] I have reviewed the additional paragraphs of the Rogerson in-chief affidavit identified by the defendants and Student Q and have considered them in the context in which they appear in the affidavit (including the heading under which paragraphs 92 to 95 appear which reads “Who is Student Q and who is her Family?”). I find that paragraphs 92 to 95, as well as paragraph 308 of the Rogerson in-chief affidavit contain descriptive language that tends to identify Student Q and her family and that they are not in compliance with the Penny Order.
[55] All of the exhibits to the Rogerson in-chief affidavit that the defendants and the family of Student Q contend are in breach of the Penny Order were outlined in a 2-page confidential schedule that the defendants filed with the court. In oral argument, the plaintiffs disagreed with two of the identified concerns on this schedule: (i) One at pages 208/209 of the record that contains a description of the role of Student Q’s mother; and (ii) the other at pages 187/191/210 which the plaintiffs say would require an inspection of the as-filed version of the affidavit to see if the redactions on that copy fully obscured the text or not. They did not dispute during argument the remaining thirteen instances or the suggestion that they needed to be redacted to bring them into compliance with the Penny Order but argued that the four of these instances that had been extracted from the defendants’ productions (contained in Rogerson exhibits “V”, “Y” and “KK”) were the responsibility of the defendants to properly redact and that the plaintiffs were entitled to rely on the defendants’ redactions.
[56] The defendants challenge the plaintiffs’ contention that they were relying on the defendants’ redactions. However, the defendants’ main argument with respect to the sub-set of the exhibits sourced from the defendants’ productions is that the plaintiffs were responsible to ensure that anything they filed in the public court file, regardless of its source, was compliant with the Penny Order. The fact that the defendants had made certain redactions in their productions that were not filed with the court does not relieve the plaintiffs of their obligations under the Penny Order for materials that they wished to publicly file. I agree.
[57] Having reviewed the fifteen instances of exhibit pages identified in the 2-page confidential filing, it is clear that the as-filed Rogerson in-chief exhibits do contain descriptive language that tends to identify Student Q and her family and that the identified exhibit pages are not in compliance with the Penny Order.
The Confidential School Records of Student Q
[58] The plaintiffs also dispute the validity of the concerns raised with respect to the Exhibits attached to the Rogerson in-chief affidavit comprising the confidential School Records of Student Q and Mr. Rogerson’s daughter. The plaintiffs maintain that the redactions of the names should suffice.
[59] These confidential School Records are referred to as ASANA which is the name of the system in which they are recorded and preserved. Student Q’s confidential School Records are appended at Exhibits “W” and “LL” to the Rogerson in-chief affidavit and Exhibit “V” contains additional school notes about Student Q said to form part of her confidential School Records in ASANA. Paragraphs 211 through 254, spanning 42 pages of the Rogerson in-chief affidavit are devoted to describing what is contained in these confidential School Records pertaining to Student Q.
[60] The family of Student Q is particularly concerned about any public disclosure of Student Q’s confidential School Records. They maintain these records are inherently private, sensitive and contain intimate personal details about Student Q, over which she has a strong expectation of privacy. The records go the very core of the person and the student who she is. Her family seeks to protect her privacy and the privacy of her personal and confidential School Records.
[61] The family of Student Q submits, and the defendants agree, that for a young child few documents will contain as much personal, intimate information as their confidential School Records. These are inherently private records that document her behaviours, emotional development, intellectual and academic performance and her social interactions. They also include communications between her parents and her teachers on these topics and about her general growth and development and day to day needs. They maintain that the privacy concerns over these confidential School Records go beyond being able to identify Student Q or her family. The privacy interests in confidential School Records are akin to the privacy interests that individuals have in their medical or therapeutic records, which are routinely protected by sealing orders.
[62] The reasonable expectation of privacy in biographical records of this nature was recognized by the Supreme Court of Canada in the case of R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 99. Regina v. O'Connor (1994), 90 C.C.C. (3d) 257 (B.C.C.A.), aff’d [1995] 4 S.C.R. 411 was considered by R. v. Keukens, at para. 28 and R. v. Barbosa, at para. 29. These cases protected disclosure of these documents, said to be “fairly characterized as falling within ‘…the biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination’ to the state or others.” In the criminal context where the accused’s rights to access information is at its highest, these cases held it was not as high as the privacy interests in confidential school records. [3]
[63] The family of Student Q argues that there is no need for the confidential School Records of Student Q to be in a public court file. To the extent any portions of them are considered by the court to be relevant to any issue that it must decide, those portions should be protected by a sealing order before they are filed. They are greatly concerned by the lack of sensitivity displayed by the plaintiffs in having simply appended the entirety of Student Q’s confidential School Records as exhibits to the Rogerson in-chief affidavit that was filed in the public court file.
[64] Educators and administrators need the confidential School Records to do their jobs. In the public-school system, consent of the guardian or the student is required under s. 266(2) of the Education Act for them to be used for any other purposes or referred to in any court proceedings. That is legislative recognition of the purpose of these records and the need to protect the students’ privacy in them. The fact that the Education Act does not apply to private schools like Havergal College does not mean that the plaintiffs were free to disclose the confidential School Records of Student Q. The intended use of these records and inherent privacy interests in them are no different for Student Q just because she attends a private school. Her confidential School Records were produced to the plaintiffs in this proceeding under the protection of the deemed undertaking rule for discovery purposes. The plaintiffs were put on notice at the time they were produced of the intention of the defendants to seek a confidentiality and protective order over them before they would be tendered into evidence.
[65] The importance of protecting those privacy interests exists equally in the confidential School Records of a child enrolled at a private school as for a student enrolled in a public school. The absence of statutory protections for students enrolled in private schools does not foreclose the availability of equivalent privacy protections through the courts. It is apparent from the April 2, 2020 Rogerson affidavit filed on this motion and the submissions made on behalf of the plaintiffs, which propose that the redaction of the name of Student Q and her family from these records should suffice, that the plaintiffs do not appreciate the need for enhanced privacy protections of these confidential School Records that go beyond the names of Student Q and her family.
[66] The family of Student Q asks the court to apply the test from Sierra Club of Canada v. Canada (Minster of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at para. 53. The family of Student Q asks the court to impose as a term of the relief granted on this motion some restrictions on any future reference to Student Q’s confidential School Records. The family of Student Q seeks an order that any evidence or other filings in these proceedings that contain any references to Student Q’s confidential School Records, or their contents, be sealed.
[67] If the court is not prepared to grant that order now, then the family of Student Q asks that the Rogerson in-chief affidavit be struck and asks for the opportunity to seek that sealing and protective order before any further affidavits that refer to or append these confidential School Records are permitted to be filed. The defendants have also indicated that if the court requires a separate motion for the additional protection that they seek for the confidential School Records, they had contemplated bringing one and will do so, as long as these confidential School Records remain protected from public filing and disclosure in the meantime by an order removing the Rogerson in-chief affidavit that appends them from the public court file and an order that prevents any future unilateral filings of the plaintiffs.
[68] Persuasive arguments were made in favour of an order preventing Student Q’s confidential School Records, or any references to them, from being filed in the public court file or being disclosed to anyone who is not party to this action without leave of the court. However, it was not the focus of the briefing of this urgent motion and I am concerned that it may be premature to make that a permanent sealing and protective order over the entirety of these records without a formal motion. That said, I am imposing terms (detailed later in this endorsement) that will afford the defendants and the family of Student Q the opportunity to ensure that appropriate protections are in place before any materials are publicly filed.
How Best to Remediate the Rogerson In-Chief Affidavit
[69] The plaintiffs argue that the identified concerns could have been addressed, and perhaps a significant part of this motion could have been avoided, if the defendants had itemized their concerns about the Rogerson in-chief affidavit (totaling 735 pages) at the outset. They also say that their error in having served a different version of this affidavit than was filed would have been discovered earlier if the defendants had done this. With respect to the exhibits that were appended to the Rogerson in-chief affidavit that were sourced from the defendants’ productions, the defendants are faulted by the plaintiffs for not having made sufficient redactions.
[70] The plaintiffs also suggested that the fact that there only remain 13 concerns with their redactions to exhibits (excluding the concerns about the redactions in exhibits produced by the defendants) out of 65 exhibits comprising over 650 pages means that her office did a reasonably good job in their redaction efforts. Plaintiffs’ counsel submitted in oral argument that there is no need for the court to order that the Rogerson in-chief affidavit be struck as she is prepared to make the necessary further redactions and seeks the court’s leave to do so.
[71] These are surprising submissions that seek to lay the blame for the plaintiffs’ public court filings that do not comply with the Penny Order on the defendants, or to suggest that a low percentage of disclosures that identify or tend to identify Student Q or her family is acceptable. A party’s productions (whether redacted or not) do not form part of the court file just because they have been delivered to the opposing party as part of the documentary discovery process.
[72] Each party bears responsibility for ensuring that what they put in the public court file is compliant with any existing court orders and their own undertakings. Parties should also not render moot proposed protective orders (such as in respect of the confidential School Records) by making public filings before the proposed protection has a chance to be sought. The situation might have been different if the plaintiffs had served but refrained from filing the Rogerson in-chief affidavit, but they did file it in the face of requests from the defendants for confirmations that they would not do so.
[73] It is my understanding that, without a court order, materials that have been filed cannot be altered or replaced, even under normal operating conditions, without leave and a specific direction of the court. Given the extent of the corrections that are needed and the concerns about the inclusion of the confidential School Records of Student Q, the more prudent course is for me to strike and have removed from the court file the 3-volume as-filed version of the Rogerson in-chief affidavit that was filed on March 20, 2020.
[74] The defendants have identified various other evidentiary concerns with the Rogerson in-chief affidavit, such as its reference to hearsay and double hearsay, the inclusion of arguments, the proffering of Mr. Rogerson’s opinions about matters that he has not been qualified to testify to, the disclosure of matters discussed at without prejudice settlement conferences and reference to matters that are proposed to be pleaded in an amended statement of claim that leave has not yet been sought by the plaintiffs to deliver. These objections do not carry the same urgency as the concerns about the disclosure of the identity of Student Q and her family and the identity of other minor children and the defendants are not asking for any rulings on these objections right now. They will be raised in due course.
b) Striking the Rogerson March 22, 2020 and its Removal from the Court File
[75] The defendants oppose the filing of this affidavit in-chief from Mr. Rogerson on the basis that it was served well after the March 13, 2020 peremptory deadline for delivery of in-chief affidavits. The defendants further object to this affidavit that purports to attach redacted versions of previously delivered affidavits from individuals who plaintiffs’ counsel represents in another action, when it has already been determined by the court that the admissibility of their evidence in this action is to be determined on a motion that has not yet been scheduled.
[76] The plaintiffs argue that since the exhibited affidavits were previously delivered in unredacted form, long before the filing deadline, Mr. Rogerson’s March 22, 2020 affidavit appending redacted versions of those affidavits is a mere technicality. Despite indications to the contrary when this affidavit was first served, plaintiffs’ counsel has now advised the court that it has not been and never will be filed in the public court file. It was also indicated that this March 22, 2020 affidavit has not been provided to any non-parties. Notably, this March 22, 2020 affidavit names the affiants of the appended affidavits, whose names are redacted in the exhibit copies (thereby defeating the intention behind the redactions that were made).
[77] Recognizing that they do not want to file the March 22, 2020 affidavit, in their factum the plaintiffs ask the court to grant leave for them to anonymize these other minor children’s names as a term of any relief granted on this motion, so that they can file redacted versions of the appended affidavits. In addition to the general powers of the court to order any terms as the court considers to be just on a motion under Rule 37.13, the plaintiffs rely on section 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the cases of Beiko v. Stone, 2019 ONSC 1703, at paras. 22-26 and Jane Doe 464533 v. ND, 2016 ONSC 541 at para. 66. The plaintiffs argue that their failure to seek this relief proactively (before filing) is not a reason to deny it now. They seek the order nunc pro tunc to ameliorate concerns about reputations, gossip, humiliation and emotional distress that would be caused by the affidavits appended to the March 22, 2020 Rogerson affidavit being filed in unredacted form.
[78] The plaintiffs make these arguments in favour of their clients in another action and for the benefit of other minor children named, while at the same time challenging at least some of the objections by the defendants and the family of Student Q to the Rogerson in-chief affidavit and its failure to adhere to the Penny Order that was put in place to protect the identify of Student Q and her family. The defendants argue that the affidavits appended to the March 22, 2020 Rogerson affidavit should not be permitted to be filed in any form until their admissibility has been determined.
[79] There is no need to strike the March 22, 2020 Rogerson affidavit and have it removed from the court file in light of the undertaking from plaintiffs’ counsel that it has not been and will never be filed. The specific redactions that the plaintiffs seek to make to protect the privacy of the affiants of the appended affidavits can be raised and will be considered at the contemplated motion to determine the admissibility of those affidavits.
[80] In the meantime, I will make an order at the end of these reasons as part of the relief granted that extends the Penny Order to protect the identities of any minor children in all court filings in, or any publications about, this proceeding.
c) Requiring that the Plaintiffs Seek and be Granted Leave Prior to any Further Court Filings
[81] The defendants rely on three primary grounds in support of this request. First, that the plaintiffs have filed private information about minor children in the public court file, contrary to the Penny Order (in relation to Student Q). Second, they have filed private information about other minor children contrary to their own undertakings not to do so in relation to the other minors. Third, they attempted to obfuscate or delay the discovery of this at a time when access to the court file is compromised due to the constraints on normal court operations in place under the March 15, 2020 Notice to the Profession.
[82] The plaintiffs contend that they were under no obligation to seek permission to file the Rogerson in-chief affidavit and that the Notice to the Profession expressly contemplated normal course filings could be made. They rely on the fact that the filing office accepted the Rogerson in-chief affidavit as an indication that its filing was appropriate. The plaintiffs further submit that they did not hide the fact that it had been filed. They argue that it should have been expected that it would be filed because that was the purpose for allowing redactions in the Penny Order, so that materials could be filed. The plaintiffs do not, however, provide any explanation for why they did not respond to inquiries about whether it had been filed from March 14 until after the court confirmed its filing on March 25, 2020.
[83] The plaintiffs argue that this relief should only be granted where someone is found to be a vexatious litigant under s. 140(1) of the Courts of Justice Act, or where material filed has been found to be frivolous, vexatious or an abuse of process. They contend that there is no basis for such findings in this case. They contend that this term of the order sought would only be warranted if they had done something wrong, and they contend that they have not.
[84] The defendants argue that this is an appropriate term of any order granted on this motion because, among other things, the plaintiffs:
a. Served and filed the Rogerson in-chief affidavit after the peremptory deadline for doing so by: i. Serving it after the close of business on March 13, which was the new date substituted to allow the plaintiffs a further extension from the last court ordered deadline of close of business on March 4, 2020; ii. Serving the affidavit without exhibits when the prior deadline of March 4, 2020 that was extended to March 13, 2020 had been expressly stated to require the service of the affidavit with exhibits; iii. The version filed was never properly served on the defendants and was only provided to them in a link embedded in a further affidavit of March 31, 2020; and b. Filed with the court a version of the Rogerson in-chief affidavit that was different than the one that had been served on the defendants; c. Waited until their response to this motion to ask the court to grant leave retroactively, nunc pro tunc, for permission to file the further redacted version of the Rogerson in-chief affidavit that was filed on March 20, 2020; d. Filed the Rogerson in-chief affidavit on March 20, 2020 in the face of objections to it and requests for confirmation that it had not been filed that had been outstanding since March 14, 2020; e. Refused to advise whether the Rogerson in-chief affidavit had been filed with the court until March 25, 2020 after the court had confirmed that it appeared to have been filed on March 20, 2020; f. Filed the Rogerson in-chief affidavit and exhibits with the court that they now acknowledge to be in breach of the Penny Order and their own counsel’s undertaking, and seek leave to remediate those transgressions on the basis that they were inadvertent; g. Appear not to appreciate the full effect of the Penny Order by their failure to acknowledge that other aspects of the Rogerson in-chief affidavit are in violation of it; h. Included Student Q’s confidential School Records in the exhibits to the Rogerson in-chief affidavit after having been given express notice that the defendants intended to seek further protection of those records before they were filed; i. Purported to redact identifying information about their own minor client in another action from the exhibits to the March 22, 2020 Rogerson affidavit, without making any attempt to redact the identifying information about other minor children from those materials despite the February 14, 2020 undertaking of plaintiffs’ counsel to obtain a confidentiality and protective order in respect of these other minors; j. Advised at the April 3 hearing that they had not and would not file the March 22, 2020 Rogerson affidavit, after having expressly stated that they intended to file it (as stated in their counsel’s email correspondence of March 22, 2020) and having tried to file it just days earlier in connection with another motion in this proceeding; and k. Refused to advise whether the Rogerson in-chief affidavit has been given to any non-parties other than the plaintiffs’ expert.
[85] The defendants argue that this is a demonstrated course of conduct that indicates that the plaintiffs have either intentionally or willfully disregarded the court’s process and requires the court to step in to ensure that its process is respected. Rules 37.13, 77 and 60.12 provide the court with jurisdiction to grant a motion with any terms that the court deems appropriate.
[86] The family of Student Q argues that this is a necessary term to restore their confidence in the court and its ability to protect the identity of Student Q afforded by the Penny Order. No inadvertent, deliberate or willful breaches of the Penny Order are tolerable from their perspective. Furthermore, if the protection of a prior vetting of future court filings is in place, then the family of Student Q would be more comfortable to leave for another day the relief that they will request for a sealing and protective order over the confidential School Records of Student Q.
[87] I find that the course of conduct of the plaintiffs is justification for terms being placed on future court filings. This will allow objections about materials that identify or might tend to identify Student Q or any other minor children or their families to be addressed and redactions to be made so that they are compliant with the Penny Order, the orders arising from this motion and any future orders that deal with the privacy rights of minor children. It will provide comfort that there is a mechanism in place to ensure that the court’s process is respected.
[88] The plaintiffs suggested in oral argument that if there was to be any policing of future filings it should be done on an ex parte basis by the court, without the involvement of the defendants or the family of Student Q as they should not have the right to vet the plaintiffs’ materials. This is unworkable from the court’s perspective, for a variety of reasons, not the least of which is that the court is not familiar with all of the parties’ productions and the materials that have been filed to date are voluminous. The court does not have the necessary knowledge or resources to review and assess this material on its own. It is the role of counsel filing material to ensure it is compliant, and the role of opposing counsel to review and raise areas of concern for the court’s consideration.
[89] I am ordering that no party shall file any material in the public court file until at least two weeks after it has been served on the opposing party and any other interested party. In the case of matters involving the privacy of Student Q, counsel for the family of Student Q shall be provided with a courtesy copy of the material when it is served on the opposing party. If, during the intervening two weeks, any objections are raised by the opposing party or any interested party to the materials served, they shall be identified and brought to the attention of the case management judge so that further directions can be provided. The materials shall not be placed in the public court file pending those directions. If no objections are raised, the materials may be filed in the public court file after the two-week waiting period following service has elapsed. If the unfiled materials are required for a hearing that is scheduled during the two-week waiting period or within two days thereafter, a copy may be directly delivered to the judicial officer who is presiding over that hearing.
d) Requiring the Plaintiffs to disclose the Identity of any Non-Parties to Whom they have Provided Copies of either the Rogerson in-chief affidavit or the Rogerson March 22, 2020 Affidavit
[90] The grounds for this relief sought by the defendants is to remediate against any public disclosure that has taken place as a result of the inclusion in the Rogerson in-chief and March 22, 2020 affidavits of the names or identifying features of any minors whose privacy should have been protected. The defendants seek this relief as an ancillary term of the order, pursuant to Rules 37.13, 77 and 60.12. The plaintiffs have confirmed that the March 22, 2020 Rogerson affidavit has not been provided to any third-parties so this relief is only being considered in relation to the Rogerson in-chief affidavit.
[91] The plaintiffs initially objected to this relief through the invocation of Mr. Rogerson’s rights under the Charter of Rights and Freedoms, because of a concern that the defendants may be seeking a Rule 60 order against him for contempt of court. The defendants confirmed that they rely only on Rule 60.12 and the court’s jurisdiction pursuant thereto to make any order as is just as a result of the plaintiffs’ non-compliance with the Penny Order, prior case management orders and potential end run around the Rule 30.1 deemed undertaking. [4] It is under that jurisdiction that they seek the relief in their notice of motion.
[92] The defendants’ notice of motion does not seek any order for contempt under Rule 60.11. The defendants submit that they are seeking the least restrictive consequences of these breaches, not an order for contempt or to have the action stayed or dismissed. Rather, they are asking for terms to prevent similar breaches from occurring again.
[93] The family of Student Q argues that the harm caused by the concerns about the disclosure of confidential and/or identifying information about Student Q are exacerbated by the potential that the as-filed Rogerson in-chief affidavit has been disseminated to other non-parties. They are concerned about lay persons having seen what they consider to be inflammatory, false and out of context allegations that are extremely damaging to Student Q in the form of sworn evidence from a lawyer that may impute credibility to matters about which he has no direct knowledge.
[94] While the defendants indicated that they would be content with a court order directing that the plaintiffs ask for the return and/or destruction of any copies provided to non-parties, the family of Student Q argues that does not go far enough to protect Student Q and they need to know who, if anyone, has received the material so that further remediation efforts can be considered if deemed necessary. Until the identity of any potential recipients is known, the nature and extent of required remediation cannot be determined. For example, plaintiffs’ counsel alluded to a filing that she was making in respect with a Children’s Aid Society (CAS) investigation involving Student Q in one of her emails (as part of an explanation for why she had not responded to concerns and inquiries about the Rogerson in-chief affidavit) and the family of Student Q would like to know if that affidavit has been provided to CAS.
[95] The plaintiffs further argue that to require them to disclose the identity of every person to whom they have given the Rogerson in-chief affidavit would compel them to disclose privileged information and/or to divulge confidential information concerning a child protection matter that counsel is prohibited from disclosing.
[96] At a minimum, the family of Student Q asks for all orders and directions as are necessary to ensure that all copies of the Rogerson in-chief affidavit that are in the possession of any non-parties to the litigation are permanently destroyed or returned. Having regard to the privilege concerns raised by the plaintiffs, I think this can be accomplished without requiring at this time the disclosure of the names of everyone to whom the affidavit and exhibits were given.
[97] I am ordering the plaintiffs to contact every person to whom the Rogerson in-chief affidavit has been provided, to provide them with a copy of this endorsement and any order arising from it, and to ask them to return or destroy all hard and electronic copies that they have of that affidavit in their possession, and that they confirm to plaintiffs’ counsel that they have read and understand this endorsement and order and that they have complied with it. The plaintiffs are to advise the court and counsel for the defendants and the family of Student Q if any non-party fails to respond or refuses to comply with this order, at which time further consideration will be given by me as to whether the identity of that non-party should be disclosed to the defendants and the family of Student Q. For the time being, I am not ordering the identity of any recipients of the Rogerson in-chief affidavit to be disclosed by the plaintiffs.
Prior Sealing of the Court File
[98] This motion was adjourned twice before it was heard on April 3, 2020, after having been scheduled for an urgent hearing on March 30, 2020. The first time it was adjourned to allow for the hearing of the recusal motion. The second time it was to allow the plaintiffs an opportunity to respond to a further supplementary affidavit delivered by the moving defendants. It was acknowledged at that time that the current constraints under which all parties and the court are operating due to the suspension of regular court operations due to the COVID-19 pandemic had no doubt contributed to the manner and timing in which this issue has come before the court and the ability of the participants and counsel to effectively and responsibly deal with it.
[99] At the time of this second adjournment, there was a concern that there could be further adjournment requests as new materials were being filed. To alleviate against that concern, I ordered as a term of the adjournment of this motion on April 2, 2020 that the entire court file in this matter be temporarily sealed until further order of this court, pursuant to Rule 37.13 and section 137(2) of the Courts of Justice Act.
[100] I determined at that time that the limited and short-term impact that this sealing order will have on the open court principle is outweighed by the privacy interests identified. See Dagenais v. Canadian Broadcasting Corp., [1994] 2 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 and Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522. The sealing of the entire court file is no longer necessary, in light of my decision herein and the orders and directions provided below which will address the privacy interests sought to be protected in a manner that is less restrictive.
[101] I direct that my April 2, 2002 temporary sealing order of this court file be lifted and that the 3-volume Rogerson in-chief affidavit filed on March 20, 2020 (as well as any copies of the March 22, 2020 Rogerson affidavit that may have found their way into the electronic court file) be sealed until such time as they can be removed from the court file by the plaintiffs.
Final Disposition and Costs
[102] For the reasons outlined in this endorsement, the primary relief sought by the defendants’ motion is granted and the Rogerson in-chief affidavit is ordered to be struck and removed from the court file. This relief is granted together with the following additional terms and directions:
a. The family of Student Q is granted standing to make submissions and seek relief in respect of the privacy interests of Student Q on this motion. b. The names and identities of any minor children and their families shall be anonymized in the existing and any future materials filed in this proceeding. This applies, without limitation, to the names and identities of minor children that appear in paragraphs 257 through 263 and 307 and anywhere else in the Rogerson in-chief affidavit or the Rogerson March 22, 2020 affidavit and appended exhibits. The following protections, which are an extension of those already provided for in the Penny Order for the benefit of Student Q, shall apply: i. their names and any information that identifies or tends to identify any minor child or their family shall be redacted from any materials filed with the court and replaced by pseudonyms that are distinct from their real names and initials; ii. there shall be a ban on the publication of the name of any minor child or their family, or any information that would tend to identify them or their families; iii. any document filed in this proceeding that identifies or would tend to identify any minor child or their family members shall be treated as confidential, sealed and not form part of the public court file; iv. any document filed in Court and that is subject to the sealing order in subsection (iii), above, will also be filed in Court and in the public record having been appropriately redacted according to subsection (i), above. c. My April 2, 2020 temporary sealing order of this court file is lifted. d. The plaintiffs are directed to retrieve from the court file as soon as is reasonably practicable the 3-volume as-filed version of the Rogerson in-chief affidavit that was filed on March 20, 2020 and that I have ordered to be removed from the court file. In the meantime, I am directing that all hard and electronic copies of the 3-volume Rogerson in-chief affidavit (originally filed in hard copy on March 20, 2020), as well as any copies of the March 22, 2020 Rogerson affidavit that may have found their way into the electronic court file, be sealed until such time as they can be removed from the court file by the plaintiffs. e. The plaintiffs are directed to serve a new version of the Rogerson in-chief affidavit that is appropriately redacted in accordance with the directions provided in this endorsement (and with any further directions that are provided regarding the confidential School Records of Student Q). Specifically, to redact, i. Paragraphs 92 to 95 and paragraph 308 of the Rogerson in-chief affidavit that contain descriptive language that tends to identify Student Q and her family and that are not in compliance with the Penny Order. ii. The as-filed Rogerson in-chief exhibits that contain the fifteen instances of descriptive language that tend to identify Student Q and her family that are not in compliance with the Penny Order, as detailed in the 2-page confidential filing of the defendants pertaining to the exhibits. iii. Paragraphs 257 through 263 and 307 of the Rogerson in-chief affidavit that contain the names or any descriptive language that tends to identify minor students and/or their families. iv. The exhibits (“V”, “W”, “Y”, “AA”, “LL”, and “XX”) containing confidential School Records of Student Q and Mr. Rogerson’s daughter should be removed and the paragraphs describing them should be redacted, pending further directions from the court. f. Other affidavits comprising the plaintiffs’ evidence in-chief shall be redacted in a consistent manner to the redactions that have been ordered in respect of the Rogerson in-chief affidavit. g. None of the plaintiffs’ affidavits, even in redacted form, comprising their evidence in-chief shall be filed in the court file unless and until they are relevant to some issue that is pending before the court. h. No party shall file any material in the public court file until at least two weeks after it has been served on the opposing party and any other interested party (in the case of matters involving the privacy of Student Q, counsel for the family of Student Q shall be provided with a courtesy copy of the material when it is served on the opposing party). The following protocol shall be followed upon service of any materials: i. if, during the intervening two weeks, any objections are raised by the opposing party or any interested party to the materials served, they shall be identified and brought to the attention of the case management judge so that further directions can be provided, and the materials shall not be placed in the public court file pending receipt of those directions; ii. if no objections are raised, the materials may be filed in the public court file after the two-week waiting period following service has elapsed; iii. if the unfiled materials are required for a hearing that is scheduled during the two-week waiting period or within two days thereafter, a copy may be directly delivered to the judicial officer who is presiding over that hearing. i. The plaintiffs are directed to contact every person to whom the Rogerson in-chief affidavit has been provided and: i. provide them with a copy of this endorsement and any order arising from it; ii. ask them to return or destroy all hard and electronic copies that they have of it in their possession; iii. ask them to confirm to plaintiffs’ counsel that they have read and understand this endorsement and order and that they have complied with it. The plaintiffs are to advise the court and the counsel for the defendants and the family of Student Q if any non-party fails to respond or refuses to comply with this order, at which time further consideration will be given by me as to whether the identity of that non-party should be disclosed to the defendants and the family of Student Q. j. The defendants and/or the family of Student Q may bring a further motion for additional protections in respect of any public filing of the confidential School Records of Student Q and Mr. Rogerson’s daughter if agreement cannot be reached with the plaintiffs about the treatment of those files. The family of Student Q is granted standing to bring or participate on that motion if it is required.
[103] At the conclusion of the oral submissions, counsel asked for the opportunity to make written submissions on costs. The moving parties (defendants) and non-party family of Student Q may deliver written submissions on costs (not to exceed 3 pages each, double spaced) together with their costs outline by no later than close of business on April 21, 2020. The responding parties (plaintiffs) may deliver written submissions on costs responding to the submissions of both the defendants and the non-party family of Student Q (not to exceed 3 pages each, double spaced) together with their costs outline by no later than close of business on April 28, 2020. Reply cost submissions of the moving parties (defendants) and the non-party family of Student Q, if any (not to exceed 1.5 pages each, double spaced) may be delivered by no later than close of business on May 4, 2020.
[104] My costs decision will be released in due course after I have received and considered these further submissions.
[105] Notwithstanding Rule 59.05, this endorsement and the orders and directions made herein are effective from and after the date indicated below and they are enforceable without any need for the entry and filing of a formal order. In accordance with Rule 1.04, no formal order is required unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this endorsement may nonetheless submit a formal order for original signing, entry and filing when the Court returns to regular operations.
Kimmel J. Date: April 14, 2020
Footnotes
[1] Some of the correspondence with the court leading up to this motion formed part of the grounds for the plaintiffs’ request for my recusal as the case management judge. The specific complaints about the court’s efforts to determine what had been publicly filed in advance of the scheduling and hearing of this motion are addressed in my endorsement on the recusal motion and are not repeated in this endorsement.
[2] R.S.O. 1990, c. E.2. This section deems confidential school records to be privileged and restricts them to be used by supervisory officers, principals and teachers and educators for the improvement and instruction and education of the pupil and prescribes that these records cannot be made available to others or admitted into evidence without the written permission of the parent or guardian of the pupil or the written permission of the pupil, if an adult.
[3] These were the cases that counsel directed me to. I understand that the principles that they stand for have been updated and enhanced since they were decided. They can be considered as a baseline for privacy protections in the particular context of school records.
[4] Notably, the plaintiffs had at a previous case conference indicated that they intended to seek relief from the implied undertaking to be permitted to make use of productions received from the defendants as part of the discovery in this action, but subsequently indicated that they would not be bringing that motion. The defendants argue that this indicates an appreciation on the part of the plaintiffs that they could not hand over productions to third parties. Now the defendants are suspicious that the plaintiffs decided, instead, to append the productions to the Rogerson in-chief affidavit and file it so that it could be made available to non-parties through that modality. I do not have a record before me upon which I can determine whether that has occurred.