Court File and Parties
COURT FILE NO.: 17-74404
DATE: 20190307
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Medical Council of Canada – Le Conseil Médical du Canada Plaintiff (Moving Party)
AND
Dr. Hazem Mohamed Ebrahem Elmansy, 9252-1954 Québec Inc. c.o.b. as Dr. PSA Services and Ruba Sameer Omar Abdul Hadi Defendants (Responding Parties)
BEFORE: Justice C.T. Hackland
COUNSEL: R. Aaron Rubinoff and Joel M. Dubois, Counsel for the Plaintiff No one appearing for the Defendants
HEARD: February 25, 2019 (Ottawa)
ENDORSEMENT
[1] I granted a partial sealing order on the plaintiff’s application, which was not opposed by the defendants or by any media. These are my reasons for so doing.
[2] The plaintiff, the Medical Council of Canada (MCC) oversees the administration of the so called NAC exam, which is a one day, performance based exam assessing a candidate’s clinical skills and medical knowledge required for entry into post-graduate training programs, and is used by Canadian medical schools to select candidates for acceptance into medical school clinical residency programs.
[3] The MCC is responsible for assessing international medical graduates (IMGs) who wish to practice medicine in Canada.
[4] If an IMG passes the NAC exam, he or she will be eligible to apply to Canadian medical school’s clinical residency programs.
[5] The plaintiff’s witness has deposed that all medical graduates must go through a residency program before they can be fully licensed. The application process for IMGs to get into a residency program is highly competitive, with the score from the NAC exam being critical to a candidate’s success in obtaining access to a residency program. Annually, there are about 2,500 IMGs who attempt to find a match into a Canadian residency program, with only approximately 400-500 candidates being successfully matched.
[6] Persons taking the NAC exam are required to execute a confidentiality agreement and the MCC takes careful measures to guard the confidentiality of the examination questions and clinical scenarios.
[7] In this action the plaintiff alleges that the defendant Dr. Hazem Elmansy and his company Dr. PSA Services, in the context of offering a preparatory course to IMG students for taking the NAC exam, conspired to appropriate the confidential clinical examination exercises used by the plaintiff in the NAC examination. This cheating, it is alleged, has allowed certain IMGs to obtain artificially higher marks on the examinations and to improperly gain admission to Canadian residency programs.
[8] At the inception of this litigation, the court granted to the plaintiff an interlocutory injunction prohibiting the defendants from continuing to use the appropriated examination material in the defendant’s preparatory course. The court also authorized an Anton Piller Order permitting the seizure of relevant documentation from the defendant’s premises and from their electronic devices. These orders were based on the plaintiff having established a prima facia case of entitlement to this relief.
[9] In this motion, the plaintiffs have asked for a sealing order for some of the documentation and information before the court (which is currently subject to a temporary sealing order). The plaintiff requests that the following documents be treated as permanently confidential, sealed and not form part of the public record:
(a) Documents that could directly or indirectly reveal the content of the MCC’s examinations;
(b) Documents that could directly or indirectly reveal the identity of a non-party witness who disclosed the unlawful activity;
(c) Documents that could directly or indirectly reveal the identity of non-parties; and
(d) Certain personal information about the individual defendants and their children.
[10] Section 137 (2) of the Courts of Justice Act provides that “a court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record”. Sealing orders are permitted in exceptional cases, the general rule being that all court documents are presumed to be open to the public. This presumption is referred to as the “open court principle”.
[11] The Supreme Court of Canada has set out a test as to when a sealing order may be granted in a civil context. Justice Iacobucci, speaking for the court in Sierra Club of Canada v. Canada (Minister of Finance) 2002 SCC 41. He set out the two-part test at para. 53:
A confidentiality order…should only be granted when:
a) Such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context or litigation because reasonably alternative measures will not prevent the risk; and
b) 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 in this context includes the public interest in open and accessible court proceedings.
[12] I am satisfied that the test for a sealing order established in Sierra Club has been satisfied in this case. I appreciate that there is a strong public interest in knowing about any threats or compromises to the integrity of the examination system which is relied on to insure the competence of medical graduates who will be staffing the residency programs in our hospitals and medical clinics. On the other hand, the disclosure of the information sought to be sealed would create a serious risk of disclosure and misuse of highly confidential information and an order for its partial restriction, as discussed hereunder, would minimally impair the open court principle.
[13] Firstly, there will be a sealing order in regard to documentation which would reveal the content of the MCC’s examinations. To do otherwise would result in damage to the reliability, integrity and validity of the MCC exams and undermine the efficacy of the examination process. The integrity of the process is essential to the public interest in ensuring the competency of medical graduates entering the health care system.
[14] Secondly, the serious misconduct alleged in this case was exposed by the information of a non-party witness. This whistle blower has deposed that he or she would be at potential risk if his/her identity were disclosed. The identity of this witness is known to the parties to this proceeding and I see no public interest in the disclosure of the identity of this witness.
[15] Thirdly, in the course of obtaining the Anton Pillar order, it was necessary to disclose to the court personal details about the defendants including their address and family situations. There is no public interest in disclosing such information and in the circumstances the defendants could readily be exposed to harassment.
[16] Finally, the court, on motion by the plaintiff, permitted the waiver of the implied undertaking rule to allow the plaintiff to identify to certain professional governing bodies and medical faculties the identity of the participants in the preparatory course who allegedly were provided with the examination questions appropriated from the plaintiff. I am persuaded that the motion record identifying these individuals should be sealed, subject to further order of the court, in recognition of the fact that irreparable harm could be done to their professional reputations if this information were disclosed at this point in the litigation.
[17] I would note that the public court file in this proceeding does contain the pleadings and the affidavits filed in this and the previous motions, subject only to the partial sealing of materials as addressed in this endorsement.
Justice C.T. Hackland
Date: March 07, 2019
COURT FILE NO.: 17-74404
DATE: 20190307
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Medical Council of Canada – Le Conseil Médical du Canada Plaintiff (Moving Party)
AND
Dr. Hazem Mohamed Ebrahem Elmansy, 9252-1954 Québec Inc. c.o.b. as Dr. PSA Services and Ruba Sameer Omar Abdul Hadi Defendants (Responding Parties)
BEFORE: Justice C.T. Hackland
COUNSEL: R. Aaron Rubinoff and Joes M. Dubois, Counsel, for the Plaintiff No one appearing for the Defendants
ENDORSEMENT
Justice C.T. Hackland
Released: March 7, 2019