Court File and Parties

COURT FILE NO.: CV-22-690262-00CP DATE: 20230524 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: V.T. AND: Aurora Cannabis Inc., Aurora Cannabis Enterprises Inc. and Medreleaf Corp.

BEFORE: J.T. Akbarali J.

COUNSEL: Margaret L. Waddell, Jonathan Schachter and Adam Babiak, for the plaintiff Daniel S. Murdoch, Aaron Kreaden and Hamza Mohamadhossen, for the defendants

HEARD: In writing

Proceeding under the Class Proceedings Act, 1992

Endorsement

Overview

[1] This putative class action is a product liability claim which alleges that the defendants failed to warn of Cannabis Hypermesis Syndrome (“CHS”), a potentially life-threatening condition caused by the ordinary use of the defendants’ cannabis products.

[2] The proposed representative plaintiff moves for an order permitting them to be named as V.T., that their place of residence be identified as “Z-town”, that materials filed in support of this motion be sealed, that documents filed in the public court file redact information that would identify the plaintiff, including their name, address, age, date of birth, employment, photographs, health card, phone numbers or other identifying information, and an order prohibiting the publication of any information identifying or tending to identify the plaintiff.

[3] The defendants do not oppose the order sought.

[4] Notice to the media was given in accordance with the court’s Practice Direction, and no media expressed any interest in, or intention to oppose, this motion.

Legal Principles Governing Protective Orders

[5] Under s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 48, 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.

[6] The most recent case on protective orders from the Supreme Court of Canada, Sherman Estate v. Donovan, 2021 SCC 25, at para. 38, reiterates that court proceedings are presumptively open to the public. “[T]he 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”: Sherman Estate, at para. 1.

[7] Confidentiality and sealing orders and related publication bans are governed by a discretionary test that balances the public interest in open courts with other public interests that the open court principle may compromise. As the Court described in Sherman Estate, at para. 38:

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.

[8] All three prerequisites must be met before a protective order can be made: Sherman Estate, para. 38.

[9] I consider each of these prerequisites in turn.

Does court openness pose a serious risk to an important public interest?

[10] The plaintiff alleges they have suffered post-traumatic stress disorder (“PTSD”) as a result of sexual violence in the course of their employment. The plaintiff used the defendants’ cannabis products to treat their symptoms of PTSD and developed CHS.

[11] While this case relates to CHS, and the plaintiff’s alleged CHS-related injuries, the plaintiff argues that their personal background is not related to the claim except that they were prescribed cannabis as part of their treatment for PTSD.

[12] The plaintiff fears that if their name, place of residence, or other identifying information were revealed publicly, they may be targeted for reprisal or revictimization by community members or people from their former workplace, and risk further psychological harm. There is a letter from the plaintiff’s treating psychologist in the motion material that supports these concerns.

[13] There are public interests at stake that would be served by a protective order. First, a protective order will prevent likely harm and revictimization to the plaintiff. It is in the public interest that the administration of justice adapt its processes to ensure that any survivor of sexual violence or other trauma can access the justice system without being harmed or retraumatized.

[14] Second, as put by the plaintiff in their factum, “[t]he proposed order will also serve the public interest of protecting the dignity and psychological integrity of survivors of sexual violence [to which I would add, survivors of any trauma] who attempt to access the courts”. I agree that the public interest extends beyond protecting an individual litigant, but rather, to protecting the class of trauma survivors who may seek to access the court system. Protecting an individual litigant sends the message to other survivors who may be reluctant to seek justice through the courts that their dignity and psychological integrity will be valued and protected.

[15] These conclusions find support in the Supreme Court of Canada’s decision in Sherman Estate where, at para. 65, the Court found that there is “value in leaving people free to restrict when, how and to what extent highly sensitive information about them is communicated to others in the public sphere, because choosing how we present ourselves in public preserves our moral autonomy and dignity as individuals”.

[16] Similarly, at para. 85 of Sherman Estate, the Court held that the public “has an interest in the preservation of dignity: the administration of justice requires that where dignity is threatened in this way, measures be taken to accommodate this privacy concern.”

[17] The plaintiff’s experiences as a survivor of sexual violence and their development of PTSD are highly sensitive personal information necessitating protection.

[18] Moreover, there is evidence in the record supporting the plaintiff’s concern that their experiences of sexual assault may expose them to harassment, reprisals and speculation in their community, and subject them to anxiety and aggravate the symptoms of their PTSD. I do not lay out the evidence in detail in these reasons because to do so would risk the exposure the plaintiff seeks to avoid.

[19] I am satisfied that court openness would, in this case, pose a serious risk to the well-being, dignity, and psychological integrity of the plaintiff and, by extension, survivors of trauma, including sexual abuse, who seek to access the courts.

Will reasonably available alternative measures prevent the risk?

[20] The proposed order is tailored to address the specific harms that are made out in the record. I am satisfied that further limiting the protections sought would not prevent the risk that is established in the record. Accordingly, I find that there are no reasonably available alternative measures which will prevent the risk.

Do the benefits of the order outweigh its negative effects?

[21] The proposed order is, as I have just noted, tailored to the risk. Importantly, the information sought to be protected is not information that is at the heart of the claim. It is, at most, background information that explains how the plaintiff came to consume the defendants’ cannabis products. The public will be able to understand what this case is about without the information the plaintiff seeks to redact from the public record. Accordingly, the limits the order would place on the openness of court proceedings would be minimal, and far removed from the key facts that underlie the claim.

[22] On the other hand, the order would provide protection to this specific plaintiff against further harm or re-traumatization, and would protect their dignity. Moreover, it would advance the public interest in shielding people who have experienced trauma from being retraumatized by accessing the justice system. It thus makes the justice system more accessible and relevant to survivors of trauma, and supports survivors of trauma in accessing justice.

[23] I thus conclude that, on balance, the benefits of the protective order sought outweigh the incursion into the open court principle in this case.

[24] The motion is granted. Order to go in accordance with the draft I have signed.

J.T. Akbarali J. Date: May 24, 2023