Court File and Parties

COURT FILE NO.: CV-19-629398 DATE: 20200402 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 certain non-parties including a minor child referred to in these proceedings pursuant to the November 28, 2019 Order of Penny J. as Student “Q”

HEARD: April 2, 2020

Endorsement

[1] This action was assigned to me by Firestone RSJ for case management under Rule 77 of the Rules of Civil Procedure, on the consent of the parties confirmed in writing on February 20, 2020.

[2] Pursuant to the March 15, 2020 Notice to the Profession requests were made, and leave was granted by Myers J. in endorsements dated March 30 and 31, 2020, for two urgent motions to be heard this week by me in this matter. They were both originally returnable at 11:15 on Wednesday April 1, 2020.

[3] The first scheduled hearing was for a motion by the defendants, supported by the non-party family of Student Q, seeking 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 minors who are, or were, students at the school (and for other related relief).

[4] The second scheduled hearing was for a motion by the plaintiffs for my recusal as the case management judge. The second motion was served late in the day on March 31, 2020 and was granted leave for hearing on the morning of April 1, 2020. The defendants requested and were granted a brief adjournment to respond to the recusal motion which was adjourned to 10:15 a.m. on April 2, 2020 and was argued at that time. I dismissed that motion in brief oral reasons delivered this afternoon, with written reasons to follow.

[5] The plaintiffs asked that the defendants’ motion also be adjourned until after the recusal motion was heard. It was adjourned to 2 p.m. on April 2, 2020. This morning, before court convened, the defendants’ delivered a supplementary affidavit of Ms. Calon in connection with their motions to be heard this afternoon. Plaintiffs’ counsel did not have an opportunity to review that affidavit until after the argument on the recusal motion was completed, at around noon today. At the resumption of the proceedings today at 2 p.m. counsel for the plaintiffs asked that the motion be adjourned so that she could respond to this affidavit.

[6] Defendants’ counsel objected, citing the various last minute and late filings and the need for their motion, which had already been determined by Myers J. to be urgent, to be heard. They suggested we proceed and that there be written materials and submissions after today’s hearing about the issue raised in the supplementary affidavit of Ms. Calon of April 2, 2020 if need be.

[7] Plaintiffs’ counsel argued that the proposal of defendants’ counsel would not be just or fair and reiterated the request for an adjournment. She indicated that she could respond today and that the motion could resume tomorrow.

[8] I observed that all parties are working under time constraints and that it is understandable that there have been last minute filings. However, the court is concerned that the past two times that the defendants’ motion has come up there has been a request for an adjournment and I fear there may be another request to adjourn tomorrow (perhaps by the defendants this time if they need to respond to the material delivered today from plaintiffs’ counsel).

[9] Having regard to the endorsement of Myers J. regarding the urgency of the defendants’ motion in this matter and the superordinate importance of the issue that has been raised for determination concerning the privacy interests of children (Rogerson v. Havergal College, 2020 ONSC 1940, at para. 7), the court offered to plaintiffs’ counsel the option of either: (i) proceeding today with the opportunity for further written materials and submissions concerning the Calon affidavit delivered this morning after the decision is taken under reserve; or (ii) that I would grant the adjournment she requested on the term that the entire court file in this matter be sealed, in order to alleviate the urgency that has already been decided and against the prospect that something would be delivered by the plaintiffs today that required response from the defendants, that could lead to further delays beyond tomorrow. Plaintiffs’ counsel agreed to the latter option. There was no objection to the proposed term of the adjournment by counsel for the defendants or the non-party family of Student Q.

[10] Accordingly, the defendants’ motion scheduled originally to be heard on April 1, 2020 by endorsement of Myers J. dated March 30, 2020 (supplemented by his further handwritten endorsement of the same date) that was adjourned by me to April 2, 2020 is further adjourned to April 3, 2020 at 10:15 a.m. Pursuant to Rule 37.13 of the Rules of Civil Procedure and section 137(2) of the Courts of Justice Act, as a term of this adjournment, I hereby order that the entire court file in this matter be sealed until further order of this court.

[11] This is intended to be a temporary term to alleviate the immediate urgency over the concerns that have been raised by the defendants for adjudication by the court on their merits, about the protection of the important privacy interests of minor children. The current constraints under which all parties and the court are operating at this time due to the suspension of regular court operations due to the COVID-19 pandemic have no doubt contributed to the manner and timing in which this issue has come before the court and the ability of the parties and counsel to effectively and responsibly deal with it.

[12] In these circumstances, 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 and 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.

[13] The identification of the issues and reasoning behind this term of the adjournment does not reflect any adjudication on the merits of the issues raised by either the defendants (moving parties) or plaintiffs (responding parties) on the pending motion, nor does it foreclose any arguments that the plaintiffs may wish to make about the standing of the family of Student Q.

[14] Notwithstanding Rule 59.05 of the Rules of Civil Procedure, this endorsement and order is effective from the date it is made and is enforceable without any need for entry and filing. In accordance with Rule 1.04 of the Rules of Civil Procedure, no formal order need be entered and filed 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 2, 2020