Court of Appeal for Ontario

Date: 2019-04-25

Docket: C65272

Judges: Doherty, Simmons and Pardu JJ.A.

Between

Amira Khalid Mo Elbakhiet, Abdelrhman Elkh Ahmed, Maha Ahmed and Niem Ahmed

Plaintiffs (Appellants)

and

Derek A. Palmer, Rockie Palmer, Metcalfe Realty Company and Kingsway General Insurance Company

Defendants (Respondents)

Counsel:

Joseph Y. Obagi, for the appellants

Kevin P. Nearing, for the respondents

Heard: January 30, 2019

On appeal from: The order of Justice Martin S. James of the Superior Court of Justice, dated March 14, 2018, with reasons reported at 2018 ONSC 105.

Reasons for Decision

Overview

[1] The issues on appeal concern the propriety of a December 2017 sealing order in relation to psychometric testing documents produced and marked as exhibits during the 2012 trial of a personal injury action.

[2] Under a March 2012 consent order, Dr. Janet Munson was required to produce the psychometric testing documents to counsel for both parties. Dr. Munson is a neuropsychologist. She was retained by the respondents to conduct testing on one of the appellants. The psychometric testing documents at issue include test questions, test answers and responses, scoring, stimuli, manuals, and instructions, all in relation to 15 specified tests and any other psychometric testing Dr. Munson administered to the particular appellant.

[3] The March 2012 consent order included several terms relating to the use and confidentiality of the psychometric testing documents, including a temporary sealing order in the event any of the documents were marked as exhibits. During cross-examination of Dr. Munson at the 2012 trial, appellants' counsel referred her to the psychometric testing documents and asked that they be marked as exhibits. The psychometric testing documents thus became subject to the temporary sealing order set out in the March 2012 consent order.

[4] As of December 2017, the temporary sealing order had expired and the psychometric testing documents had been returned to appellants' counsel by the court. The December 2017 order amended the March 2012 consent order by deleting the terms specifying that the sealing order was temporary and would expire 60 days after judgment was entered in the action.

[5] In making the temporary sealing order permanent, the motion judge considered the need to balance necessity and proportionality in accordance with decisions such as Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; R. v. Mentuk, 2001 SCC 76, [2001] 3 SCR 442; and Dagenais v. C.B.C., [1994] 3 S.C.R. 835. He found that protecting the integrity of test procedures was an important interest, worthy of protection. Further, he concluded that making the temporary sealing order permanent several years after the fact would not seriously affect public confidence in the judicial system or erode the open courts principle. In that regard, he noted that the trial had been conducted in open court. Moreover, there was no apparent impact on or prejudice to the appellants in making the sealing order permanent. Finally, in his view, the order was not overreaching.

[6] In our view, the appeal must be allowed. As the psychometric testing documents were no longer in the court's possession, the respondents' request to make the 2012 temporary sealing order permanent was misconceived. As of December 2017, there was no issue about members of the public viewing the psychometric testing documents at the court house; rather, the issue was whether the appellants or their counsel could use the documents for purposes other than this litigation or disseminate them to others. Further, and in any event, on the facts of this case, we are not satisfied that the motion judge could conduct the analysis necessary to make either a sealing order or a confidentiality order when the documents at issue were not before the court. Similarly, we are not satisfied that the motion judge engaged in the balancing necessary to make either order.

Background

(i) The Personal Injury Action and Dr. Munson's Evidence

[7] The personal injury action arose out of a 2007 car accident. One of the appellants, Ms. Elbakhiet, claimed damages against the respondents in part for post-concussive syndrome and related impairments she claimed arose from the accident. Dr. Munson conducted psychometric testing on Ms. Elbakhiet and was called as an expert witness for the respondents. It was her opinion that Ms. Elbakhiet had deliberately underperformed and was exaggerating her claims.

[8] The appellants' counsel sought production of the psychometric testing documents to challenge the admissibility of and, once admitted, the weight of, Dr. Munson's evidence. Among other things, he challenged the reliability of some of the testing for a person whose first language was not English, Dr. Munson's failure to follow certain testing instructions, and Dr. Munson's reliance on what he referred to as a debunked study.

(ii) The March 2012 Consent Order

[9] As we have said, the March 2012 consent order included several terms relating to use and confidentiality of the psychometric testing documents.

[10] Paragraph 1 of the March 2012 consent order required production of the specified psychometric testing documents to counsel for both parties.

[11] Except with leave, para. 2 prohibited counsel from providing copies of the material produced to anyone other than an Ontario psychologist to assist counsel with the action.

[12] Paragraph 3 stipulated that the materials produced "may not be used for any purpose other than for the conduct of this litigation."

[13] Paragraph 4 required the return of the materials produced to Dr. Munson within seven days of the final disposition of the action.

[14] The temporary sealing order in the event any of the materials became exhibits was set out in para. 5, which is reproduced below. The underlined portion of this paragraph was added in handwriting by the trial judge:

5. THIS COURT FURTHER ORDERS that if any of the materials produced pursuant to paragraph 1 hereof should be made exhibits at trial, they will be given letter rather than numerical designations and will be the subject of a temporary sealing order to expire 60 days after Judgment is entered in this matter, subject to further Order of the Court.

[15] Paragraph 6 required that, apart from any exhibits, any copies of the materials produced made to assist the jury or the court be destroyed immediately upon the conclusion of the trial.

(iii) The Temporary Sealing Order Expires and the Trial Exhibits are Returned to Appellants' Counsel

[16] Judgment was entered in the action on July 9, 2012. Accordingly, the temporary sealing order in para. 5 of the March 2012 consent order expired on September 7, 2012.

[17] However, the action was not finally disposed of until January 22, 2015, when the appellants' application to the Supreme Court of Canada for leave to appeal the costs award (which had been reduced by this court) was dismissed. In accordance with r. 52.04(4) of the Rules of Civil Procedure, RRO 1990, Reg 194, at some point, the psychometric testing documents marked as trial exhibits were returned to appellants' counsel, the lawyer who filed them.

[18] In oral submissions on the appeal, appellants' counsel confirmed that the original exhibits were returned to Dr. Munson, as required under the March 2012 consent order. However, he retained copies of the psychometric testing documents. Given that they were marked as trial exhibits and the temporary sealing order had expired, in his view, they were then in the public domain. Appellants' counsel was asked at the appeal hearing about para. 3 of the March 2012 consent order limiting use of the materials produced to this litigation. Counsel asserted initially that it was simply a statement of the implied undertaking rule, which ceases to have effect once documents are made exhibits, unless the exhibits are subject to a sealing order. In any event, he noted that no issue had been raised about para. 3 in this proceeding. In reply submissions, counsel acknowledged that his clients may have to address para. 3 before making any use of the relevant documents but maintained that the question was not in issue on this appeal.

(iv) The Respondents' Motion

[19] In March 2015, the respondents moved for an order (i) extending the time for seeking a permanent sealing order with respect to the psychometric testing documents produced under the March 2012 consent order; (ii) making the temporary sealing order permanent; and (iii) in addition or in the alternative, for directions concerning whether, under para. 3 of the March 2012 consent order (the paragraph that restricted use of the materials produced to this proceeding), the manuals produced by Dr. Munson could be used in other cases before the court.

[20] Ultimately, the respondents did not pursue the latter request. Apparently, this was because an unrelated action, in which appellants' counsel sought to use at least some of the psychometric testing documents at issue to cross-examine Dr. Munson, had settled.

[21] In November 2016, the respondents brought a supplementary motion requesting orders sealing the transcripts of Dr. Munson's evidence on the voir dire and at the trial of this action. However, the respondents abandoned these requests when the motion for a permanent sealing order was heard in December 2017.

(v) The December 2017 Formal Order

[22] The December 2017 formal order amends para. 5 of the March 2012 consent order by deleting the word "temporary" and the handwritten interlineation "to expire 60 days after Judgment is entered in this matter". As amended, para. 5 March 2012 consent order reads as follows:

5. THIS COURT FURTHER ORDERS that if any of the materials produced pursuant to paragraph 1 hereof should be made exhibits at trial, they will be given letter rather than numerical designations and will be the subject of a sealing order, subject to further Order of the Court.

Discussion

(1) An Order Sealing the Psychometric Testing Documents from Public View Was No Longer Available in December 2017

[23] Section 137(1) of the Courts of Justice Act, RSO 1990, c C.43, provides that on payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise. Section 137(2) permits a court to order that "any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record."

[24] Given that the psychometric testing documents were no longer in the court's possession as of December 2017, no purpose was served by deleting the language from para. 5 of the March 2012 consent order making the sealing order temporary. The psychometric testing documents were not part of any court record and they were not available for review at the court house by members of the public.

(2) The Motion Judge Erred in Applying the Sierra Club / Dagenais / Mentuk Test

[25] The motion judge approached the respondents' motion as addressing whether the psychometric testing documents should be treated as now being in the public domain.

[26] The principles to be applied on a motion prohibiting documents filed in court proceedings from public dissemination are set out at paras. 53-55 of Sierra Club, which adapts the Dagenais and Mentuk test to the confidentiality of documents context. To obtain a confidentiality order, the requesting party must satisfy a two-part test:

i) the order must be necessary to prevent a serious risk to an important interest, including a commercial interest, because reasonable alternative measures will not prevent the risk; and

ii) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which includes the public interest in open and accessible court proceedings.

[27] To meet the necessity part of the test, the requesting party must show: an important interest that can be expressed as a public interest; a real and substantial risk that is well-grounded in the evidence and that poses a serious threat to the interest in question; and no other reasonable alternative to the order sought.

[28] In the motion judge's view, the desirability of keeping test materials, interpretive manuals, and test protocols out of the hands of prospective test-takers "seem[ed] almost self-evident", considering the potential mischief that widespread publication and distribution could entail. He found protecting the integrity of testing procedures and interpretive manuals an important interest and the evidentiary threshold for establishing its importance to neuropsychologists relatively low. In his view, it was not an overreaching order.

[29] As for proportionality, he noted that the trial had been conducted in public and that there was no suggestion of prejudice to the appellants. He concluded that keeping the testing materials and related documents that were marked as exhibits from public dissemination would not erode public confidence in the judicial system or erode the open courts concept.

[30] We see at least two errors in the motion judge's approach. First, he concluded there was an important public interest in the confidentiality of all the documents marked as exhibits without examining them. In particular, he did not consider to what extent they were already in the public domain through the trial judge's reasons on the admissibility voir dire relating to Dr. Munson's evidence or the transcripts of her testimony on the voir dire or at the trial.

[31] The respondents argue that confidentiality orders have been made in other cases without the need to examine the documents. Sierra Club is but one example. Here, say the respondents, all that is at issue are test manuals – the confidentiality of which is effectively self-evident, as the motion judge has found.

[32] We do not accept this submission. At the appeal hearing, counsel did not agree on the content of the material subject to the sealing order. Contrary to respondents' counsel's submission, appellants' counsel asserted that the produced materials marked as exhibits included not only the manuals but also studies showing the science underlying the tests, instructions on administering the tests, as well as Dr. Munson's notes concerning how she administered the tests and Ms. Elbakhiet's performance on the tests. Without examining the exhibits, the motion judge could not assess the extent to which test security would be put at risk by public disclosure or whether test security was truly a factor in relation to all the material marked as exhibits. Nor could he assess whether some part of the material was already in the public domain through Dr. Munson's evidence or the trial judge's reasons on the voir dire. If that were the case, there would be little purpose in a confidentiality order. See H. (M.E.) v. Williams, 2012 ONCA 35, 108 O.R. (3d) 321, at para. 63.

[33] This case is distinguishable from Sierra Club because, in that case, the appellant Atomic Energy of Canada Ltd. ("AECL") did not own the documents the respondent Sierra Club sought to have produced. China owned the documents and would only authorize their production if AECL obtained a confidentiality order. AECL filed a summary of the documents, but because of the ownership issue, Sierra Club was an all or nothing case. Without examining the material marked as exhibits, the motion judge could not be satisfied this was such a case.

[34] The motion judge's second error was in failing to consider, as part of the proportionality analysis, the public interest in access to material that would facilitate cross-examination of Dr. Munson in other proceedings. Appellants' counsel explained how he had used some of the documents at issue to cross-examine Dr. Munson at trial.

[35] Respondents' counsel argued that appellants' counsel overstated the impact of his cross-examination and disputed the necessity of further disclosure since the matter was fully concluded and the transcripts of the trial and related proceedings were available.

[36] In our view, the respondents' submissions miss the point. The question for the motion judge was whether the salutary effects of a confidentiality order outweighed the deleterious effects, including the impact on the open courts principle. When addressing proportionality, the motion judge should have considered the public interest in litigants' access to material that facilitates the cross-examination of an expert witness.

Disposition

[37] Based on the foregoing reasons, para. 2 of the December 2017 order amending para. 5 of the March 2012 consent order by making the temporary sealing order contained therein permanent is set aside. We observe, however, that before any use can be made of the psychometric testing documents that were marked as exhibits for purposes other than this litigation or before those documents can be given to any third party, it will be necessary that one of the parties seek an interpretation or variation of paras. 2 and 3 of the March 2012 consent order.

[38] We now turn to costs. This appeal was necessary because respondents' counsel misconceived the pertinence of a sealing order after all documents had been released by the court and abandoned the part of the motion which would have dealt with the issue of confidentiality. There is no reason that costs should not follow the result on both the motion and the appeal. Counsel for the parties agreed that in the event the appeal was allowed, the appellants would be entitled to costs of the appeal fixed at $17,500, and to costs of the motion in the sum of $16,783.87, the same amount ordered initially in favour of the respondents. We therefore set aside the costs order in the December 2017 order and order costs for the appeal and the motion as agreed by counsel in favour of the appellants.

"Doherty J.A."

"Janet Simmons J.A."

"G. Pardu J.A."

Footnotes

[1] The sealing order motion was heard on December 12, 2017, but the motion judge's reasons were released on March 14, 2018. Nonetheless, the formal order is dated December 12, 2017. We will therefore refer to the order as the December 2017 order.

[2] Rule 52.04 of the Rules of Civil Procedure provides:

52.04 (1) Exhibits shall be marked and numbered consecutively, and the registrar attending the trial shall make a list of the exhibits, giving a description of each exhibit, and stating by whom it was put in evidence and, where the person who produced it is not a party or a party's lawyer, the name of that person.

(2) At any time following the trial judgment, on requisition by the lawyer or party who put an exhibit in evidence or the person who produced it and on the filing of the consent of all parties represented at the trial, the registrar may return the exhibit to the person making the requisition.

(3) Subject to subrule (2), the exhibits shall remain in the possession of the registrar or the registrar of the court to which an appeal is taken,

(a) until the time for an appeal has expired; or

(b) where an appeal has been taken, until it has been disposed of.

(4) On the expiration of the time for appeal or on the disposition of the appeal, the registrar on his or her own initiative shall return the exhibits to the respective lawyers or parties who put the exhibits in evidence at the trial.

[3] An extension was necessary because there was confusion about the expiry of the temporary sealing order. Dr. Munson had separate counsel in relation to the March 2012 consent order. She deposed that she was unaware of the stipulation that the temporary sealing order would expire 60 days after Judgment was entered in the action. The appellants did not oppose the extension and undertook not to use the material produced pending resolution of the respondents' motion.

[4] Dr. Munson provided information about the proposed use of the psychometric testing documents in the unrelated action in her affidavit filed on the respondents' motion. Respondents' counsel explained in oral submissions on the appeal that the unrelated action settled.