Court File and Parties

Court File No.: CV-20-638954 Date: 2020-04-27 Ontario Superior Court of Justice

Between: MOTHER DOE, personally, and JANE DOE, AN INFANT, by her LITIGATION GUARDIAN, MOTHER DOE Plaintiffs – and – HAVERGAL COLLEGE, SEONID DAVIS, PARENT 1, Litigation Guardian for STUDENT 1, and STUDENT 2 Defendants

Counsel: Andrew Rogerson and Angela I. Salvatore, for the Plaintiffs Linda Rothstein and Ren Bucholz, for the Defendant Havergal College Shaun Laubman and Connia Chen, for the Defendants Parent 1, litigation guardian for Student 1, and Student 2 Emma Carver for Toronto Star Newspapers Ltd.

Read: April 27, 2020

Important Notice to Readers

An order banning publication about this proceeding has been made pursuant to the inherent jurisdiction of the Superior Court of Justice and the considerations outlined by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 3 S.C.R. 835. The order prohibits the publication by anyone of any information that identifies or may tend to identify the minor parties in this lawsuit, including their names and addresses, their parents’ names, occupations, and more. For complete information concerning the scope of the publication ban, readers are cautioned and directed to read the court’s formal order implementing the publication ban. A copy of the formal order may be obtained from the lawyers for any of the parties or from the court office. AND TAKE NOTICE that anyone who violates the terms of the publication ban ordered by the court may be charged with contempt of court and may be subject to punishment including fine and imprisonment.

F.L. Myers J.

Supplementary Reasons for Decision

Background

[1] For reasons dated April 14, 2020, reported at 2020 ONSC 2227, the court banned publication of information about this lawsuit that might disclose the identities of the minor parties.

[2] In my reasons, I indicated that the minor defendants sought an additional order in their factum requiring the plaintiffs to disclose the identities of all non-parties to whom they had already disclosed the unredacted statement of claim or amended statement of claim containing the minor defendants’ names. At the hearing, Mr. Laubman made submissions supporting this relief. Mr. Rogerson, for the plaintiffs, declined to respond. He argued instead that it was not necessary for me to decide this issue.

[3] I now see that I made an error in my initial recitation of the procedural facts concerning this issue. In its notice of motion, Havergal sought an order requiring the plaintiffs to disclose the names of non-parties to whom they had identified the minor defendants in their unredacted pleadings. The notice of motion delivered by the minor defendants represented by Mr. Laubman explicitly adopted the prayer for relief contained in the notice of motion of Havergal. Accordingly, the request for this order was not raised for the first time in the minor defendants’ factum. The plaintiffs had ample notice that the claim was in issue at the return of the motion.

[4] In my decision, in light of my errant concern that the plaintiffs might not have had sufficient notice, I determined that the fair outcome was to provide a brief opportunity to the plaintiffs to deliver written submissions in response to Mr. Laubman’s argument at the hearing. Accordingly, I invited written submissions by the plaintiffs to be delivered by Friday April 17, 2020 and reply submissions by Mr. Laubman by noon on April 21, 2020.

[5] On Friday, April 17, 2020, I received an email from Ms. Salvatore, for the plaintiffs, requesting an extension of the deadline to provide their submissions until April 20, 2020 on consent. The parties proposed that the deadline for Mr. Laubman’s reply submissions be extended to April 23, 2020. I granted the consent extension as sought.

[6] The plaintiffs did not deliver written submissions on April 20, 2020 despite the extension of time.

[7] By email dated April 21, 2020, Ms. Salvatore advised that Mr. Rogerson had been drafting the submissions over the weekend but his father, who lives abroad, had become seriously ill from the Covid-19 virus. Accordingly, Mr. Rogerson was unable to finish the submissions.

[8] Despite providing this information however, counsel did not seek a further extension of time to deliver the plaintiffs’ submissions on the outstanding issue. Rather, Ms. Salvatore wrote:

Although I would normally be requesting a further extension, for reasons set out below, this is likely redundant.

In fairness, I advise Your Honour that this morning, I am finalizing the Plaintiffs’ materials with respect to leave to appeal to the Divisional Court relating to portions of the Reasons for Decision of April 14th. The Plaintiffs will seek in their said leave to appeal materials that the final stage of this matter, dealing with the written submissions, not proceed until the impending matter before the Divisional Court is resolved. A copy of the said leave to appeal materials will be served and filed shortly.

Thank you for your assistance in this matter.

[9] In the absence of responding submissions from the plaintiffs, Mr. Laubman did not file any reply submissions on April 23, 2020.

[10] As of the morning of April 27, 2020, there is no order of the Divisional Court precluding this court from finishing the hearing.

[11] If the plaintiffs had a basis to argue for the suspension of the rest of the initial hearing, they ought to have sought a deferral of the schedule from this court. By deciding unilaterally to ignore the schedule while they consider proceeding elsewhere, the plaintiffs have missed a deadline that had been ordered with their consent and they have deprived the defendants of the opportunity to make submissions on the proposed suspension of the schedule.

[12] Absent an order precluding completion of the proceeding, the appropriate course is to decide the remaining issue. To do otherwise provides the plaintiffs with the benefit of a stay that they have not obtained and provides an incentive to take unilateral steps that ignore subsisting scheduling orders. Moreover, I expect that an appellate court would prefer to have a completed proceeding before it in any event.

The Merits

[13] I summarize only the key facts here. Details are set out in my April 14, 2020 reasons. After a case conference on April 6, 2020, I scheduled the parties’ motions for a publication ban for April 9, 2020. I recited counsels’ confirmation that none of the parties who were then before the court would be filing further evidence for the motions for a publication ban. I ordered that the evidentiary record for the motions was closed with two exceptions. The order directed that if further evidence was adduced by the excepted parties, then the remaining parties could make submissions at the hearing as to any further steps. I also made an interim publication ban as follows:

No one may publish in any form or media any information that discloses the identity of any of the minor parties to this litigation or any information that tends to do so. For greater certainty, this order prohibits anyone from publishing any details of the allegations made against or by any of the minor parties pending further order of the court.

[14] On April 8, 2020, after the other parties’ evidence and factums had been delivered, the plaintiffs purported to deliver two new affidavits without seeking directions at the return of the hearing. One was a highly detailed account of the plaintiffs’ allegations that form the subject matter of the action sworn by the minor plaintiff’s mother, Mother Doe. The affidavits both referred to the plaintiffs by pseudonyms but referred to the minor defendants by their legal names.

[15] The plaintiffs or their lawyers provided Mother Doe’s affidavit to the Toronto Star during the evening of April 8, 2020 with the motions for a publication ban pending the next morning.

[16] The plaintiffs had provided their statement of claim and/or their amended statement of claim to the Toronto Star as well. The pleadings also contained the names of the minor defendants. This was done prior to the April 6, 2020 interim publication ban.

[17] Havergal’s notice of motion seeks only disclosure of the names of those to whom the plaintiffs disclosed their pleading. At the hearing, Mr. Laubman expanded the request to include all of the documents wrongfully identifying the minor defendants by name that the plaintiffs published to non-parties. The defendants could not have known before they filed their notices of motion and factums that once those documents were already filed, the plaintiffs would create and release to the press extensive materials naming the minor defendants that were not required for the motion and would be delivered in violation of the terms of the scheduling order.

[18] I noted in my prior reasons that by deliberately delivering materials identifying the minor defendants to the press the plaintiffs may well have violated the interim publication ban as well.

[19] In my prior reasons, I summarized the arguments advanced by Mr. Laubman in favour of an order requiring the plaintiffs to disclose the names of the non-parties to whom they disclosed the various purported litigation documents:

65. Mr. Laubman argues that without knowing who has received the unredacted documents circulated by or for the plaintiffs there is no way to know who should be alerted to the publication ban being ordered. He argues that if the court is concerned about protecting the minor parties’ privacy, then it should not be making an order that cannot be enforced because people to whom the plaintiffs disclosed the defendants’ identities do not know about the publication ban.

66. I raised with Mr. Laubman the question of whether strategic discussions about disclosing the pleadings among counsel and the plaintiffs might be privileged. Privilege applies to communications between a lawyer and client seeking or conveying legal advice. I am dubious that factual information that one or more documents were sent to a third-party amounts to communication for the purpose of giving or receiving legal advice. I make no finding however, as Mr. Rogerson chose not to argue this point. He said simply that it was unnecessary for the court to hear this issue now.

[20] Although I have not received submissions from the plaintiffs, I do have the benefit of having seen the reasons for decision of Kimmel J. in Rogerson v. Havergal, 2020 ONSC 2279. In that case Mr. Rogerson is a personal plaintiff. The school and a minor non-party sought orders requiring the destruction of documents released by the plaintiffs to third-parties that identified the names of minors. Kimmel J. held:

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.

[21] Rather than ordering the disclosure of names of those to whom the identities of the children had been sent, Kimmel J. required the plaintiffs’ counsel to superintend a process to ask the non-party recipients to destroy the documents and confirm to the plaintiffs’ counsel that they had done so.

[22] In this case, the defendants do not seek to have documents destroyed. Rather, they simply wish to serve the publication ban order on the people to whom the plaintiffs or their lawyers gave the documents that identified the minor defendants as litigants before the court. Before Kimmel J. the defendants were content with the process that she ordered. In this case, the defendants do not ask for an order under which counsel for the plaintiffs superintend a process of communicating with the non-parties. They ask for disclosure directly so that they can serve the publication ban order on those to whom the plaintiffs disclosed the minor defendants’ names as litigants in this proceeding. Kimmel J. reserved the possibility of granting that relief (that was requested by a non-party minor) if the process she ordered did not prove satisfactory.

[23] The issues before Kimmel J. were more complicated than those in this case. There was an issue as to the involvement of the Children’s Aid Society and whether it can or ought to be ordered to destroy documents. The plaintiffs also argued that disclosing names of recipients in that case might require disclosure of privileged information or confidential information protected by child welfare statutes.

[24] By contrast, in this case, the minor defendants seek an order that the plaintiffs disclose names of people to whom they gave certain documents that identified the minors as litigants. That is a physical act. It is not privileged legal advice. Even if a recipient may be a potential witness or have had discussions with counsel for the plaintiffs, or is a party in child welfare proceedings, no information that would identify any of that is sought.

[25] Like Kimmel J., I am not dealing with any contempt allegations.

[26] Under Rule 60.12(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court may make such order as is just where a party does not comply with an interlocutory order. Moreover, as I found in my reasons, the common law requires the protection of the identities of the child litigants in this case. I have already found that the plaintiffs breached the April 6, 2020 order by delivering the two April 8, 2020 purported affidavits. This was the culmination of the plaintiffs’ strategy to release the minor defendants’ identities to the press. In my view, the only appropriate order to ameliorate the effect of the breaches of the order and of the minor defendants’ privacy rights is to require the plaintiffs to disclose under oath, within seven (7) days, the names and contact details of each person to whom they, their lawyers, and anyone on behalf of or acting on the instructions of the plaintiffs or any of their lawyers, disclosed all or any part of the statement of claim, the amended statement of claim, the April 5 Material (as defined in my prior reasons) and the April 8, 2020 purported affidavits of Andrew Rogerson and Mother Doe.

[27] Unlike the case before Kimmel J., there will be no communicating back-and-forth with the third-party recipients. There is no need for a process for the third-party recipients to communicate information back to the parties or to the court. There is therefore no concern as to who might superintend such a process. Moreover, the manner by which the plaintiffs and their lawyers conceived of and carried out their strategy to release the identities of the minor defendants to the press, as discussed in my reasons dated April 14, 2020, precludes their involvement in an effort to remediate the harm that they sought to inflict on the children.

[28] In my view, this is an exceptional case that requires an exceptional remedy to prevent further harm to minor litigants. The law’s concern for the well-being of vulnerable minors is well understood. The publication ban order has little point and efficacy unless it is served on all to whom the plaintiffs identified the minor defendants as defendants in this lawsuit. Therefore, an order is to go in terms of the last sentence of para. 26 above.

Date of release: April 27, 2020

COURT FILE NO.: CV-20-638954 DATE: 20200427 ONTARIO SUPERIOR COURT OF JUSTICE

Between: MOTHER DOE, personally, and JANE DOE, AN INFANT, by her LITIGATION GUARDIAN, MOTHER DOE Plaintiffs – and – HAVERGAL COLLEGE, SEONID DAVIS, PARENT 1, Litigation Guardian for STUDENT 1, and STUDENT 2 Defendants

REASONS FOR JUDGMENT F.L. Myers J. Released: April 27, 2020