Court File and Parties
COURT FILE NO.: CV-20-00641899
DATE: 20220131
ONTARIO SUPERIOR COURT OF JUSTICE
RE: SHEILA ALEXANDER and JASON BERNS in his capacity as executor of THE ESTATE OF KEITH ALEXANDER, deceased, Plaintiffs
AND:
SUE-ANN LEVY, Defendant
BEFORE: Justice Mohan D. Sharma
COUNSEL: Matthew Kersten and Rob Y. Moubarak, for the Plaintiffs
David Elmaleh and Aaron Rosenberg, for the Defendant
HEARD: December 15, 2021
ENDORSEMENT
[1] The plaintiffs bring this motion for a complete or partial sealing order and publication ban in the context of this defamation action. The plaintiffs also sought to have certain portions of the Statement of Defence struck, but that aspect of the motion was settled between the parties.
Factual Background
[2] The plaintiffs, Sheila Alexander, and Jason Berns in his capacity as executor of the estate of Keith Alexander, commenced this action after a series of social media posts made on May 3 and May 4, 2020, by the defendant, Sue-Ann Levy.
[3] The defendant, Ms. Levy, is a retired journalist. She is married to Denise Alexander, the daughter of Sheila Alexander and her late husband, Keith Alexander.
[4] Keith Alexander died on May 2, 2020. The allegedly defamatory posts appear to have been triggered by the fact that Ms. Levy was not permitted to attend the funeral of Keith Alexander on May 3, 2020. The plaintiffs state that this was due to a very small capacity limit of only 10 people at the funeral home due to the COVID pandemic.
[5] The Statement of Claim was issued on June 2, 2020. It asserts that the social media posts made defamatory statements about Ms. Alexander accusing her of elder abuse and homophobia, among other things. In one of her posts, Ms. Levy states she is going “to write a book about it.” The plaintiffs also plead torts of harassment, intentional infliction of emotional distress, and negligent infliction of mental suffering.
[6] On June 17, 2020, shortly after the Statement of Claim was issued and before a Statement of Defence was filed, the defendant’s lawyer wrote to plaintiffs’ counsel. It noted that Ms. Levy had taken down the alleged defamatory posts. It urged the plaintiffs to dismiss their claim given the defences available to the defendant. It continued:
If the Statement of Claim is not dismissed forthwith, Ms. Levy will be forced to defend herself publicly by delivering a Statement of Defence, and in so doing, will have no choice but to set out the litany of questionable behaviour in the public record that is alleged to have occurred over the last number of years.
I question whether the Plaintiffs are truly interested in having a long, drawn out and public dispute on the issue of whether or not a reasonable person in Ms. Levy’s position would consider any of the conduct in the last 5 years to be capable of meaning that the late Mr. Alexander was abused.
In light of the above, Ms. Levy offers to have the Statement of Claim dismissed without costs….
[7] Pursuant to the Superior Court of Justice’s Consolidated Provincial Practice Direction, Section VI, Part F, the media was provided with notice of the plaintiffs’ request for a publication ban and had the ability to attend this hearing and make submissions. No member of the media sought to make submissions.
[8] At the conclusion of oral argument, I invited parties to consider a private arbitration of their dispute. At its core, this appeared to be a family dispute. For the many reasons that family litigants often choose alternative dispute forums, I thought this case might equally benefit from such a process. On January 27, 2022, parties advised my assistant that they were unable to agree to a private arbitration. Accordingly, I now issue my decision.
Legal Principles
[9] Section 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 enables 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”.
[10] An Order granting a publication ban or a sealing order is an exceptional remedy. The recent decision of the Supreme Court of Canada in Sherman Estate v Donovan, 2021 SCC 25 (“Sherman Estate”), is the leading authority. Paras 1 to 3 of that decision succinctly describe the reason why the presumption of openness is so important, and the high threshold test a moving party must meet to obtain such an order.
[1] This Court has been resolute in recognizing that the open court principle is protected by the constitutionally‑entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.
[2] Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press.
[3] Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on the open court principle. Where a discretionary court order limiting constitutionally‑protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects.
[11] At para 38, the Court in Sherman Estate set out the test a moving party must meet:
[38] The test for discretionary limits on presumptive court openness has been expressed as a two‑step inquiry involving the necessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:
(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22).
Analysis
[12] On the first prong of the test, have the plaintiffs established that court openness poses a serious risk to an important public interest?
[13] In Sherman Estate, the Court explained that to establish a public interest in privacy, the analysis must focus on the impact of the dissemination of sensitive personal information, rather than the mere fact of dissemination. The Court stated at para 34:
[34] …It is a high bar — higher and more precise than the sweeping privacy interest relied upon here by the Trustees. This public interest will only be seriously at risk where the information in question strikes at what is sometimes said to be the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings. [emphasis added]
[14] At para 75, the Court distinguished between information that strikes at the core identity of an individual representing an affront to dignity that the public would not tolerate, as compared to information that merely results in discomfort or embarrassment:
[75] If the interest is ultimately about safeguarding a person’s dignity, that interest will be undermined when the information reveals something sensitive about them as an individual, as opposed to generic information that reveals little if anything about who they are as a person. Therefore the information that will be revealed by court openness must consist of intimate or personal details about an individual — what this Court has described in its jurisprudence on s. 8 of the Charter as the “biographical core” — if a serious risk to an important public interest is to be recognized in this context (R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 60; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 46). Dignity transcends personal inconvenience by reason of the highly sensitive nature of the information that might be revealed. This Court in Cole drew a similar line between the sensitivity of personal information and the public interest in protecting that information in reference to the biographical core. It held that “reasonable and informed Canadians” would be more willing to recognize the existence of a privacy interest where the relevant information cuts to the “biographical core” or, “[p]ut another way, the more personal and confidential the information” (para. 46). The presumption of openness means that mere discomfort associated with lesser intrusions of privacy will generally be tolerated. But there is a public interest in ensuring that openness does not unduly entail the dissemination of this core information that threatens dignity — even if it is “personal” to the affected person.
[15] And at para 77, the Court provided a non-exhaustive list of sensitive information that, if exposed, could give rise to a serious risk. They include stigmatized medical conditions; stigmatized work; subjection to sexual assault or harassment; sexual orientation; and detailed information about family structure and work history in some circumstances. The question is “whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences.”
[16] The plaintiffs, in their factum, make the following argument as to why they have met this first prong of the test:
The Plaintiffs here have effectively lost control of their identity-giving information about themselves, their biographical core. A well-known, public figure with influence in the media, the Defendant, has cast a laundry list of unproven allegations against the Plaintiffs, including allegations of them being, at their core, greedy bigots who are willing to go so far as to abuse vulnerable members of their own family during their final years. These statements were made by the Defendant on widely viewed social media platforms for the clear purpose of attacking the Plaintiff’s reputation and out of a misplaced sense of revenge for not being permitted to attend Keith’s funeral in person. The Plaintiffs did not consciously decide to put the intimate details of their private family structure and family relationship on public display, let alone false details. It has been the Defendant’s aim to use her influence and reach on social media to shape how the Plaintiffs and their intimate family affairs, including the final years of a caring for a dying family member, decisions made regarding funeral arrangements during a pandemic, and relations as between family members, are perceived and judged by the public.
The Defamatory Statements were aimed to distort and tarnish the public image and reputation of the Plaintiffs as individuals by revealing intimate details of their lives, falsely characterizing those details in some instances and inventing entire narratives in others, and then claim the false allegations made against the Plaintiffs are reflective of who they are supposed to be as individuals, namely abusers of the elderly and homophobes.
[17] In my view, the plaintiffs have not established a serious risk to an important public interest.
[18] There is an insufficient evidentiary record to grant the relief the plaintiffs seek. The bulk of the alleged defamatory statements were levelled at Sheila Alexander. However, Ms. Alexander has not provided an affidavit on this motion setting out what personal or intimate information she is concerned about having disclosed in the public record, nor has she explained how that information, if disclosed, cuts to her biographical core and the impact it would have on her.
[19] The only affidavit filed in support of this motion was an affidavit from Ms. Alexander’s son-in-law, Jason Berns. While he does make an assertion in para 9 of his affidavit that the posts “contained further malicious, false, destructive and defamatory statements with respect to [his] character and reputation, as well as allegations about Sheila’s reputation,” his affidavit does not identify the personal information that is at risk of disclosure, its nature, and how that information cuts to his biographical core. He makes other statements which say only that he is concerned about his and Ms. Alexander’s reputation, and nothing more.
[20] The plaintiffs have a high bar to meet to be granted this exceptional relief. The Court ought not grant it based on insufficient evidence. While direct evidence is not necessarily required to establish a serious risk to an important interest, inferential reasoning cannot lead to impermissible speculation (Sherman Estate, para 97). Details of the plaintiffs’ private family structure, family relationship, and the serious harm caused by disclosure to the plaintiffs may arise in subsequently filed affidavit material or at trial, but I do not have that evidence before me on this motion. At best, I have a speculative belief from Mr. Berns that information may arise that may be destructive to the plaintiffs’ character and reputation. Based on the nature of the allegations, I can infer that discomfort or embarrassment is expected to be endured by the parties as this case progresses. However, without evidence of the exact information, its nature, or the personal impact to the parties if that information were disclosed, I cannot conclude at this time that it rises to the level justifying a limit on court openness.
[21] There was a reference in the plaintiffs’ factum to information about members of the plaintiffs’ family who are minor children. Protecting the privacy interests of children is an important consideration when granting orders to limit court openness. But again, there was no evidence about which minors might be impacted, the nature of the information about them, or the potential harm to allow the Court to weigh whether the requested order was necessary with respect to those children.
[22] I am satisfied the plaintiffs have not met the first prong of the test. Therefore, I need not assess whether the final two prongs have been met.
[23] However, I do make the following further observations, which I believe are relevant to the analysis.
[24] Defamation actions, by their very definition, seek to remedy harm suffered in the community to one’s reputation. The views of the community in defamation cases has historically been of great importance. Through public judgment and open court proceedings, a plaintiff’s reputation in the community can be restored with damages awarded. It is for this reason many defamation cases are heard by a jury, and it is one of the policy reasons why access to a jury in defamation cases has sought to be maintained.[^1] In Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130 at para 166, the Supreme Court of Canada concluded that given the loss of reputation suffered by an aggrieved plaintiff in the community, “it is members of the community in which the defamed person lives who will be best able to assess the damages.”
[25] If the purpose of a defamation action is to restore a plaintiff’s reputation within the community, one must question the merits of having such proceedings unfold behind closed doors in the absence of the public. There may be defamation cases where a publication ban and sealing order is appropriate. But in the absence of evidence of the necessity of such orders, they would appear to be counter-intuitive to the reason for bringing a defamation case in the first place. In this case, it is the plaintiffs who have launched the proceeding, and in so doing, have waived their rights to privacy, at least in part (Sherman Estate, para 58).
[26] Finally, there are less intrusive mechanisms to respond to the plaintiffs’ fear that the defendant will post or disseminate private information that may arise in these proceedings. The deemed undertaking rule in rule 30 of the Rules of Civil Procedure prevents parties or their lawyers from using evidence or information arising from discoveries “for any purposes other than those of the proceeding in which the evidence was obtained.” Furthermore, one would expect this defendant, out of self-interest, to refrain from further publishing the alleged defamatory statements until disposition by this Court. If she refused to do so, it would surely be relied upon by the plaintiffs as proof of a continuing tort.
[27] For the reasons given, I dismiss the plaintiffs motion, but without prejudice to them bringing the same or similar motion in the future should there come to be evidence or information that would support granting this relief.
Costs
[28] The defendant has provided a Bill of Costs seeking $4,741.24 in partial indemnity costs.
[29] Pursuant to s. 131(1) of the Courts of Justice Act, the Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors to be considered by the Court when fixing costs.
[30] The overall objective of fixing costs is to determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v Public Accountants Counsel for Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ. No. 2634 (C.A.). In determining costs, I must consider the factors set out in rule 57.01(1), as well as the principle of proportionality set out in rule 1.04(1.1). I keep in mind the Court should seek to balance the indemnity principle with the fundamental objective of access to justice.
[31] I am troubled with the content of the defendant counsel’s letter to the plaintiffs’ counsel, dated June 17, 2020, noted at the outset of this decision. It appeared to me that the defendant sought to use the open court principle and its laudable objectives, as a sword for litigation purposes by threatened embarrassment and humiliation if the plaintiffs did not submit to the defendant’s demand to dismiss this case. I am not satisfied that this letter offered compromise, and therefore, it is not protected by settlement privilege. A Statement of Defence had not yet been filed when the letter was sent, so the offer to dismiss the claim without costs, was not a compromise as virtually no costs would have been incurred by the defendant by the time the letter was sent.
[32] As part of their evidence on this motion, the plaintiffs relied on the potential threat contained in the June 17, 2020 letter to argue why a publication ban and sealing order were necessary in this case. The defendant cannot threaten to embarrass a plaintiff due to the openness of court proceedings, and then be immune from the cost consequences that flow when a plaintiff takes step to guard against that threat. The threat was intended to discourage the plaintiffs from accessing the justice system. Access to justice is a litigant’s right. The open court principle, which legitimizes the operations of the Court, is a right of the public. Using the open court principle to intimidate a litigant to abandon a claim, in my view, should not be rewarded.
[33] Accordingly, I decline to award the defendant her costs from the motion.
Justice Mohan D. Sharma
Date: January 31, 2022.
[^1]: See Ontario, Royal Commission Inquiry into Civil Rights (1968), Report No 1., Vol. 2 (McRuer Report); Ontario Law Reform Commission, Report on the Use of Jury Trials in Civil Cases (October, 1996).