CITATION: Khan v. Law Society of Ontario 2022 ONSC 1950
DIVISIONAL COURT FILE NO.: 559/20
DATE: 2022/03/30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Steward, Perell, and D.L. Edwards JJ.
BETWEEN:
OMAR SHABBIR KHAN
Appellant
- and –
THE LAW SOCIETY OF ONTARIO
Respondent
Omar Shabbir Khan, self-represented
Amanda K. Worley for the Respondent
HEARD: March 14, 2022 (at Toronto, by videoconference)
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] This is a motion for a sealing order of medical records that were part of the evidentiary record of professional misconduct proceedings brought by the Law Society of Ontario against Omar Shabbir Khan. More precisely:
a. By a liability decision dated March 16, 2018, the Law Society of Ontario Tribunal, Hearing Division, found Mr. Khan liable for professional misconduct and rejected his factual defence that relied in part on medical records about the state of his mental health.[^1]
b. By a penalty decision dated September 21, 2018, the Hearing Division revoked Omar Khan’s licence to practice law and rejected his Human Rights Code[^2] accommodation defence, which relied on the state of his mental health.[^3]
c. Two years later, by a decision dated October 26, 2020, the Appeal Division of the Law Society Tribunal affirmed the Hearing Division’s decisions.[^4] Again the medical records and medical evidence featured prominently in the appeal.
d. Pursuant to s. 49.38(b) of the Law Society Act,[^5] Mr. Khan appealed to the Divisional Court the Appeal Division’s decision upholding the Hearing Division’s decisions As a part of his appeal, Mr. Khan brought a motion asking for an order that various medical reports that had been filed during the course of his discipline proceedings and filed as a part of his appeal to the Divisional Court be sealed from the public.
[2] Mr. Khan seeks a confidentiality order stipulating that the medical reports filed at Exhibit “A” to the Affidavit of Omar Khan sworn May 6, 2021 be sealed from the public at the Law Society Tribunal and at this Court. The Law Society opposed Mr. Khan’s motion.
[3] For the reasons that follow, Mr. Khan’s motion is granted.
B. FACTS
[4] Mr. Khan was called to the bar in 2000. He practiced immigration law in Hamilton, Ontario as a sole practitioner.
[5] Mr. Khan often represented refugee applicants on legal aid certificates issued by Legal Aid Ontario (“LAO”). In his certificate work with LAO, Mr. Khan was required to submit his accounts for services and disbursements through the LAO’s online electronic billing system portal. He was not obliged to attach disbursement invoices from the service providers, but he was required to retain the service providers’ invoices on file for at least six years after the accounts were rendered and to produce them to LAO on request.
[6] In July 2013, Mr. Khan closed his law practice in Hamilton and became a staff lawyer for the LAO in Toronto. He closed his office on July 18, 2013 and reported for work at the LAO on July 29, 2013.
[7] On August 21, 2013, during the probationary period of his employment contract with LAO, Mr. Khan learned that the LAO was conducting an audit of his billings as a sole practitioner for the period 2009 to 2012. He was told that he had (two months) until October 31, 2013 to assemble the documents confirming his billings for the audit sample of 90 accounts on 30 files.
[8] Mr. Khan hired his former legal secretary to help him assemble the documents that had been requested by the LAO investigator. She was able to find most - but not all - of the invoices. In a panic, Mr. Khan fabricated invoices and they were submitted to the LAO. In the subsequent discipline proceedings, Mr. Khan contended that the fabrication of the invoices occurred over a weekend in early October while he was in a panic and suffering from the undiagnosed mental health ailments of anxiety, depression, and ADHD.
[9] In the course of the audit investigation, the LAO investigator was told by one of Mr. Khan’s service providers that four of Mr. Khan’s invoices with a total value of $240 had been fabricated. The matter was referred to Hamilton Police Services and the police opened an investigation.
[10] The LAO’s audit identified 65 accounts with billing irregularities totally approximately $18,000. In January 2015, the LAO filed a professional misconduct complaint against Mr. Khan. The LAO alleged that Mr. Khan had defrauded it of $250.
[11] On January 7, 2016, a panel of the Hearing Division issued an interlocutory order - on consent - suspending Mr. Khan’s licence to practice law.
[12] On March 13, 2017, Mr. Khan brought a motion to set aside that interim decision, largely based on evidence concerning his mental health. In support of that motion, he filed: (a) the report of Dr. Lisa Doupe dated December 17, 2015; (b) the report of Dr. Sohail Khattak and Dr. Allan Eng dated February 26, 2016; (c) the executive summary of Dr. Sohail Khattak dated December 9, 2016; (d) the report of Dr. Sohail Khattak dated December 9, 2016; (e) the report of Dr. N. Siddiq dated April 19, 2016; and (e) the report of Dr. Rana Samara dated August 1, 2016.
[13] On April 17, 2017, Mr. Khan’s motion came on before a Law Society Tribunal of the Hearing Division. The panel directed that if a conduct application was not issued by the Society by May 31, 2017, the interlocutory suspension would terminate.
[14] On April 17, 2017, the Hearing Division also heard and decided three preliminary issues, including whether the material tendered by Mr. Khan should be received in the absence of the public. This request was denied, and the materials were received in public, with certain limited redactions. Mr. Khan did not appeal this order.
[15] On May 26, 2017, pursuant to s. 34 (1) of the Law Society Act, the Law Society applied for a determination whether Mr. Khan had contravened s. 33 of the Act by engaging in professional misconduct.
[16] On July 12, 2017, Mr. Khan withdrew his motion to set aside the interim suspension and the conduct application got underway. Mr. Khan agreed that the conduct application would be heard by the panel of the Hearing Division that had heard the interlocutory suspension matter.
[17] In the conduct application, the parties entered an Agreed Statement of Facts. In that Agreed Statement, the parties agreed, among other things, that the hearing would proceed in public, subject to redactions of privileged client information and the personal health information of third parties.
[18] The conduct application was heard by the Hearing Division on September 7 and 18, 2017. On the first hearing date, Mr. Khan submitted the medical report of Dr. Julian Gojer dated August 28, 2017. This part of the hearing was held in the absence of the public until the parties could agree on redactions. After the redactions were approved by the panel, Dr. Gojer’s report was made public.
[19] On March 16, 2018, the Hearing Division released its liability Reasons for Decision and the matter proceeded to the penalty phase.
[20] On May 7, 2018, the Hearing Division heard evidence and submissions from the parties with respect to penalty. In support of his position on penalty, Mr. Khan submitted four medical reports; namely: (a) the report of Dr. Samara dated May 1, 2018; (b) the report of Dr. Gojer dated May 3, 2018; (c) the report of Dr. Khattak dated May 4, 2018; and (d) the report of Dr. Doupe dated May 4, 2018. The medical reports were not redacted. No request was made that the reports be received in the absence of the public.
[21] On September 21, 2018, the Hearing Division released its decision revoking the Appellant’s licence to practice law.
[22] On October 24, 2018, Mr. Khan appealed the Hearing Division’s decision to the Appeal Division .
[23] On January 21, 2019, Mr. Khan delivered his Appeal Books for the appeal to the Appeal Division. No request was made by Mr. Khan to restrict public access to these Appeal Books, which included the medical reports.
[24] The Law Society, however contended that his Appeal Books did not comply with the Appeal Division’s Rules of Practice and Procedure because the record contained documents that were not made exhibits at the hearings of the Hearing Division. This issue was resolved by way of a motion heard on April 4, 2019, wherein Peter C. Wardle, sitting as a single adjudicator of the Appeal Division, ordered that Mr. Khan’s Appeal Books be struck from the record.
[25] After unsuccessfully seeking to judicially review the decision striking the Appeal Books, Mr. Khan delivered a replacement Appeal Book on October 11, 2019. This Appeal Book included medical reports, and no request was made to restrict public access to this Appeal Book.
[26] On January 20, 2020 and April 2, 2020, Mr. Khan brought motions, among other things, seeking a non-publication order with respect to various documents. Mr. Khan filed the 11 medical reports previously filed in either the interlocutory suspension matter or the conduct application and the report of Dr. Michael Colleton dated May 25, 2017, which had been requisitioned by the Law Society. Mr. Khan asked that the medical documents be accepted in the absence of the public. Some of Mr. Khan’s motions were addressed on January 24, 2020 and the balance were heard by videoconference before the commencement of the Appeal Division hearing on May 28-29, 2020.
[27] In the April 2, 2020 motion, Mr. Khan sought to admit fresh evidence on the appeal and a motion that this material be received in the absence of the public. In support of the motion, Mr. Khan Appellant filed the 11 medical reports previously filed in either the interlocutory suspension matter or the conduct application and the report of Dr. Michael Colleton dated May 25, 2017 . Mr. Khan asked that the medical documents be accepted in the absence of the public.
[28] In Reasons for Decision dated February 27, 2020 and October 26, 2020, the Appeal Division dismissed all of Mr. Khan’s preliminary motions.
[29] In its reasons for decision dated February 27, 2020, the Appeal Division dismissed Mr. Khan’s request that the medical documents be received in the absence of the public. The panel stated at paragraphs 45-46 of its decision as follows:
In the result, at this Tribunal, the Human Rights Tribunal of Ontario, and the courts, medical information sometimes is received in public with minimal redactions. This occurs in hearings with respect to incapacity and discipline decisions where mental health is the central consideration.
In this case, many if not all of the materials regarding his medical condition that Mr. Khan seeks to exclude from the public record of this proceeding have already been entered into the public record. This has occurred, with limited redactions (in some circumstances with Mr. Khan’s consent), in the context of the Hearing Division proceedings. Mr. Khan has adduced no evidence that would support sealing materials that are already in the public record.
[30] The Appeal Division ordered that the materials filed on the motion would be received in public with redactions of privileged client information and the personal health information of third parties.
[31] On May 14 and 15, 2020, at a Proceeding Management Conference, Mr. Khan argued that the Colleton Report had not been filed in the hearing below and that it, therefore, it could not be covered by the Appeal Division’s February 27, 2020 ruling. Tribunal Chair David Wright ordered that it was ultimately up to the Appeal Panel hearing the appeal to make a final decision about what documents should be public or not, specifying that the Colleton Report would be received in the absence of the public pending such a determination.
[32] In its reasons for decision dated October 26, 2020, the Appeal Division again dismissed Mr. Khan’s request that medical reports be received in the absence of the public. The panel stated at paragraphs 44 and 45 as follows:
Mr. Khan’s motion for a not-public [sic] order covering medical reports he sought to admit as fresh evidence was dismissed. In preparation for the hearing, the parties agreed that Mr. Khan would rely on the single medical report of Dr. Gojer to explain his actions. Dr. Gojer summarized and quoted from prior medical reports in coming to his conclusions. Dr. Gojer’s report was accepted in the absence of the public, subject to the filing of a public copy that was redacted to protect privacy. Sections of Dr. Gojer’s report were quoted in the Reasons of the Hearing Panel to support its conclusion that Mr. Khan’s diagnosed mental health issues were not a factor in his misconduct nor did they render him incapable of fulfilling his professional obligations.
In his fresh evidence motion, Mr. Khan sought to submit other medical reports relied on or referenced by Dr. Gojer. We dismissed that motion. In this motion, he seeks an order that that [sic] those reports be not public. If we had accepted the reports as fresh evidence, we would not have granted the not public order he requested unless, on consent, he filed second copies redacted only for privacy that could be entered into the public record. As set out in Xynnis, the open court principle requires that administrative tribunals be open to the public. Mr. Khan did not establish the need for the order he seeks.
[33] On November 25, 2020, Mr. Khan appealed the decisions of the Appeal Division to the Divisional Court. In this notice, two of his grounds of appeal were that: the Appeal Division erred in law: (a) when it dismissed his motion for the admission of fresh evidence; and (b) when it dismissed his motions asking that medical documentation be received in the absence of the public.
[34] In support of the motion now before the court for a sealing order, Mr. Khan relies on the following medical notes, all of which post-date both the conduct application and the appeal to the Appeal Division: (a) the medical note of Dr. Siddiq dated November 18, 2020; (b) the medical note of Dr. Hussam Taha dated November 30, 2020; and (c) the medical note of Dr. Hussam Taha dated April 29, 2021.
[35] After reviewing Mr. Khan’s materials for the motion now before the Divisional Court, the Law Society requested further information from him that may assist the Law Society in coming to a position with respect to the sealing order motion. In particular, the Law Society requested information about any psychiatric assessment that was scheduled or conducted, and any treatment or crisis plan.
[36] On May 18, 2021, Mr. Khan responded and advised that: (a) he had been assessed by psychiatrist Dr. Lawrence Martin by Zoom on January 5, 2021; (b) Dr. Martin proposed a change in his pharmacological treatment; but (c) Dr. Martin had not yet issued his report. Mr. Khan advised that while he has relapse plans in place, he would not be providing details to the Law Society. Mr. Khan declined to address whether alternative means of addressing his diagnosis of adjustment disorder other than sealing the record had been discussed with Dr. Taha.
[37] To summarize, fifteen medical reports are the subject matter of Mr. Khan’s sealing order motion. Five of the reports were filed by him and are part of the record for his appeal to the Divisional Court with respect to the decision of the Appeal Division on his professional misconduct proceeding. Seven reports are the subject matter of Mr. Khan’s unsuccessful fresh evidence motion made to the Appeal Division. Three sets of medical notes were filed for the first time as a part of the sealing motion itself.
[38] On June 8, 2021, Justice Corbett of this Court made an interim order with respect to Mr. Khan’s motion for a sealing order. The order stated:
CONSENT ORDER
THIS MOTION, made by Omar Shabbir Khan, the Appellant for a confidentiality order stipulating that the medical reports filed ats Exhibit ”A” to the Affidavit of Omar Khan, sworn May 6, 2021 be sealed from the public at the Law Society Tribunal and at this Court, was heard on June 8, 2021, at by telephone conference at Toronto.
ON READING the Factum and Motion Record of the Appellant and the Factum, Motion Record, and Compendium to Oral Argument of the Respondent, and on consent of the parties:
THIS COURT ORDERS on an interlocutory basis that the medical reports found at Exhibit “A” to the Affidavit of Omar Khan sworn May 6, 2021, be sealed from the public pending the final determination of the Appeal.
THIS COURT ORDERS that the following term of the February 27, 2020 Order of the Law Society Tribunal – Appeal Division in File No. 18A-016 be stayed pending the final determination of the Appeal:
The materials filed on this motion shall be received in public but redacted in the same manner as the documents filed with the Hearing Division in relation to the hearing of Tribunal file 17H-072.
Accordingly, the medical documents filed in support of the motion will be held in the absence of the public pending the final determination of this Appeal.
THIS COURT ORDERS that the interim sealing order at Clause 1 and the stay pending appeal at Clause 2 shall remain operative until the final determination of the Appeal.
THIS COURT ORDERS that the Appellant shall be permitted to file, as part of his appeal before this Court, copies of the medical documents listed at Clause 1 that are redacted to remove any reference to the personal and medical information regarding the Appellant’s wife, parents, and children. The Appellant reserves the right to request that this Court order further redactions pertaining to the Appellant’s wife, parents, children, and himself, with respect to the copies of the medical reports listed at Clauses 1 and 2, at a later date.
THIS COURT ORDERS that the version of Mr Khan’s affidavit dated May 6, 2021 uploaded to CaseLines shall not include Exhibit “A” to that affidavit. Exhibit “A” to the affidavit will be provided to the court separately, by email to the court, copied to counsel for the respondent, in which the “re:” line of the message shall state “Sealed Documents for use at the Hearing” and to which will be attached Exhibit “A” and a copy of this order.
THIS COURT ORDERS that the parties shall not include any documents protected by paragraphs 1 and 2 of this order in materials uploaded to CaseLines, and instead shall provide any such documents as may be required for the appeal to the court separately, by email to the court, copied to counsel for the other side, in which the “re:” line of the message shall state “Sealed Documents for use at the Hearing” and to which will be attached a copy of this order.
THIS COURT ORDERS that notice of the application, the hearing date of the application and of this interlocutory order be given to the press in accordance with the Notice to Profession governing sealing of documents and other protective orders.
THIS COURT ORDERS that there shall be no costs of this motion.
[39] Mr. Khan has been traumatized by the self-destruction of his legal career and by other misfortunes in his life experience that for present purposes, I need not describe. For the purposes of this motion, it can be revealed that has been diagnosed with several physical illnesses and several mental illnesses. He has a history of suicidal ideation and risk of self-harm when his mental illnesses are made public or when material he considers shameful is made public.
[40] His current doctor opines that Mr. Khan is presently at risk of self-harm if the documents are made public. In his April 29, 2021 report, Dr. Taha states:
[Mr. Khan] cannot help thinking about recurrence of these ideas if his reputation gets destroyed as a professional lawyer, especially if his personal and medical information gets published as part of the court proceedings. I think it is only natural for him to feel that way. He is unable to cope with the idea that his information gets publicized. He sees no other way for his life to go on unless he is a reputable lawyer. He is dreadful to the idea that his medical file will be publicized. He feels his drive to go on in life is closely linked to being a successful lawyer and cannot see things any other way. It is clear that he has a very narrow view of what life could offer. Nevertheless, he cannot help thinking this way. So far, he sought many treatments in the form of counseling, psychotherapy, and medications. He feels he will end up in a deep hole mentally if he loses his reputation as a professional lawyer. I believe he's right. I think it's necessary that every step should be taken to avert future self-harm including suicide.
C. Discussion and Analysis
[41] In addition to Mr. Khan’s main argument that there should be a sealing order in accordance with the open court principles established by the Supreme Court of Canada, he advanced arguments based on: (a) the Human Rights Code; (b) the discrimination provisions of s. 15 of the Canadian Charter of Rights and Freedoms;[^6] and (c) the Freedom of Information and Protection of Privacy Act[^7] read in conjunction with the Ontario Human Rights Commission Policy on Preventing Discrimination based on Mental Health Disabilities and Addictions, because the records relate to medical, psychiatric or psychological history, diagnosis, condition, treatment, or evaluation.
[42] This court, however, is an appellate court addressing only a statutory appeal and none of these arguments are properly before this court both from an evidentiary and also from a jurisdictional perspective. I, therefore, will have no further comment about these arguments.
[43] With respect to Mr. Khan’s main argument, s. 135 of the Courts of Justice Act [^8]states that “all court hearings shall be open to the public”. It is a fundamental tenet and a rule of the Canadian legal system that the administration of justice is open to be seen and that the public, including the media, are not excluded from viewing and reporting on judicial proceedings.[^9] Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy.[^10]
[44] However, the open court principle admits of exceptions. Section 135 (2) of the Courts of Justice Act. authorizes the court to exclude the public from a hearing “where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public”. Section 137(2) of the Act authorizes the 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.
[45] Where it is shown that there is a serious risk that the disclosure of highly sensitive personal information would be an affront to the affected person’s dignity and be more than just discomfort or embarrassment, an exception to the open court principle may be justified.[^11] Although measured by reference to the facts of each case, the risk to the privacy interest will be serious only where the information that would be disseminated as a result of court openness is sufficiently sensitive such that openness can be shown to meaningfully strike at the individual’s biographical core in a manner that threatens their integrity.[^12]
[46] In Sierra Club of Canada v. Canada (Minister of Finance),[^13] the Supreme Court of Canada formulated a test for when a sealing order should be granted. Justice Iacobucci stated that a sealing order should only be granted when: (1) the order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (2) 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.
[47] The court will engage in a two-step process to determine whether to seal a court file. The first step is to determine whether there is a serious risk to a public interest that can only be addressed by a sealing or non-publication order. Only if the first step is satisfied will the court in the second step determine how the competing interests are to be balanced. There is a high evidentiary burden on a party seeking a sealing order or a redaction order, and the evidence required for an order to be granted will be subject to close scrutiny and must be convincing.[^14]
[48] In my opinion, in the circumstances of the immediate case Mr. Khan has satisfied the test for a confidentiality order. The order is necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk, and the salutary effects of the order outweigh the deleterious effects.
[49] The open court principle can yield if the public interest in protecting privacy and confidentiality outweighs the public interest in openness.[^15] Where it is shown that there is a serious risk that the disclosure of highly sensitive personal information would be an affront to the affected person’s dignity and be more than just discomfort or embarrassment, an exception to the open court principle may be justified.[^16] Although measured by reference to the facts of each case, the risk to this interest will be serious only where the information that would be disseminated as a result of court openness is sufficiently sensitive such that openness can be shown to meaningfully strike at the individual’s biographical core in a manner that threatens their integrity.[^17]
[50] No lengthy analysis is required in the immediate case in balancing the deleterious effects of encroaching on the open court principle and the salutary effects of a confidentiality order. In the immediate case, there is very little of deleterious effects. Sufficient information about the facts of Mr. Khan’s case is already in the public record and in the decisions of the Hearing Division and the Appeal Division and in the decision that this court shall be releasing on the appeal from the decision of the Appeal Division. There is a transparent record explaining how and why, Mr. Khan came to have his licence to practice law revoked.
[51] There is no going back on the release of the information that Mr. Khan presented throughout these proceedings but there is no reason to dig deeper into this material.
[52] In my opinion, in a case where the open court principle has only modestly been encroached upon, Mr. Khan has demonstrated that the disclosure of more than has already been disclosed would unnecessarily affront his dignity, perhaps exacerbate his physical and mental health and be more than just discomfort or embarrassment, which may continue in any event. The limited order he seeks in the immediate case is justified.
D. Conclusion
[53] For the above reasons Mr. Khan’s motion is granted without costs.
Perell, J.
I agree:
Stewart, J.
I agree:
D.L. Edwards, J.
Released: March 30, 2022
CITATION: Khan v. Law Society of Ontario 2022 ONSC 1950
DIVISIONAL COURT FILE NO.: 559/20
DATE: 2022/03/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OMAR SHABBIR KHAN
Appellant
- and –
LAW SOCIETY OF ONTARIO
Respondent
REASONS FOR DECISION
Released: March 30, 2022
[^1]: Law Society of Upper Canada v. Khan, 2018 ONLSTH 35.
[^2]: , R.S.O. 1990, c. H. 19.
[^3]: Law Society of Upper Canada v. Khan, 2018 ONLSTH 131.
[^4]: Law Society of Ontario v. Khan, 2020 ONLSTA 18.
[^5]: R.S.O. 1990, c. L.8.
[^6]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982, U.K. 1982, c. 11
[^7]: R.S.O. 1990, c. F. 31.
[^8]: R.S.O. 1990, c. C.43.
[^9]: R. v. S. (N.), 2012 SCC 72; Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175 at pp. 185–86.
[^10]: Sherman Estate v. Donovan, 2021 SCC 25, aff’g 2019 ONCA 376, which rev’d 2018 ONSC 4706; Vancouver Sun (Re), 2004 SCC 43 at paras. 23-26; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 184 (SCC), [1996] 3 S.C.R. 480, at para. 23.
[^11]: Sherman Estate v. Donovan, 2021 SCC 25, aff’g 2019 ONCA 376, which rev’d 2018 ONSC 4706.
[^12]: Sherman Estate v. Donovan, 2021 SCC 25 at para. 85, aff’g 2019 ONCA 376, which rev’d 2018 ONSC 4706.
[^13]: 2002 SCC 41, [2002] 2 S.C.R. 522 at paras. 5357. See also: Sherman Estate v. Donovan, 2021 SCC 25, aff’g 2019 ONCA 376, which rev’d 2018 ONSC 4706; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835.
[^14]: Carroll v. Natsis, 2020 ONSC 3263; H. (M.E.) v. Williams, 2012 ONCA 35.
[^15]: Fedeli v. Brown, 2020 ONSC 994; Carroll v. Natsis, 2020 ONSC 3263 at para. 25; F.N. (Re), 2000 SCC 35; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522.
[^16]: Sherman Estate v. Donovan, 2021 SCC 25, aff’g 2019 ONCA 376, which rev’d 2018 ONSC 4706.
[^17]: Sherman Estate v. Donovan, 2021 SCC 25 at para. 85, aff’g 2019 ONCA 376, which rev’d 2018 ONSC 4706.