COURT FILE NO.: CV-15-520683
DATE: 2023-11-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Platnick v. Bent et al.
BEFORE: ASSOCIATE JUSTICE D. MICHAEL BROWN
HEARD: 2023-06-06 (by Zoom video conference)
COUNSEL: A. Gonsalves and J. Safayeni the for moving party/defendant, Maia Bent
T. Danson for the responding party/plaintiff, Dr. Howard Platnick
A. Wong for defendant, Lerners LLP, supporting the motion
E N D O R S E M E N T
[1] The defendant, Maia Bent, brings this motion seeking an order for the production and preservation of documents under Rule 30.10 and Rule 45.01 in relation to two non-parties, TD Insurance and Dr. Varinder Dua. Bent also seeks a publication ban and sealing order in relation to two other non-parties to the litigation, identified in the publicly filed motion record as Insured 1 and Insured 2.[^1] The defendant, Lerners LLP, supports the motion. TD Insurance and Dr. Dua do not oppose the motion for production and preservation of documents. The plaintiff consents to the order for production and preservation of the non-party documents in relation to TD Insurance, consents in part to the order for production in relation to Dr. Dua and is unopposed to the balance of the motion for production as it relates to Dr. Dua. The plaintiff further consents to the sealing order and publication ban as it relates to Insured 2 and to the family members of Insured 1. The plaintiff opposes the motion for a publication ban and sealing order as it relates to Insured 1 specifically.
[2] Bent, as moving party on the motion for a publication ban, has given notice to the media of the motion in accordance with the Consolidated Provincial Practice Direction. No member of the media responded to the motion or appeared at the hearing.
[3] As the order for production and preservation in relation to TD Insurance and Dr. Dua is on consent or unopposed by the parties and is unopposed by TD and Dr. Dua, that part of the motion is granted.
[4] Although the motion as it relates to the requested sealing order and publication ban is also partially on consent of the parties, that is not determinative. Even if all parties to the litigation consent to a sealing order or publication ban, the court must still consider whether the restriction on the open court principle resulting from the requested order is justified, applying the test as most recently set out by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25. For the reasons given below, the motion for a sealing order and publication ban as it relates to Insured 2 is granted, the motion as it relates to Insured 1 (identified in this endorsement as Dr. Laura Carpenter) is dismissed.
Background
[5] In an endorsement in this proceeding released on October 17, 2023 (as yet unreported), I described the background to this action as follows:
[3] Although it has not progressed beyond the pleadings stage, this action has a long procedural history. The main action was commenced by Dr. Platnick on January 17, 2015 seeking damages for defamation. On June 27, 2016, the defendant, Maia Bent, brought a motion in this court pursuant to s. 137.1 of the Courts of Justice Act (commonly referred to as the “anti-SLAPP” provision) to dismiss the plaintiff’s libel suit against her on the basis that the proceeding arises from a communication relating to a matter of public interest. In a decision released on December 1, 2016, Justice Dunphy granted Bent’s motion and dismissed Dr. Platnick’s action against both defendants: Platnick v. Bent, 2016 ONSC 7340.
[4] Dr. Platnick appealed the dismissal under s. 137.1 to the Ontario Court of Appeal. In its decision released on August 30, 2018, the Court of Appeal allowed Dr. Platnick’s appeal and quashed the order dismissing the action, remitting the case back to the Superior Court: Platnick v. Bent, 2018 ONCA 687. The defendants sought and obtained leave to appeal to the Supreme Court of Canada, which appeal was heard on November 12, 2019. On September 10, 2020, the Supreme Court released its majority decision dismissing the defendants’ appeal and allowing Dr. Platnick’s action in defamation against the defendants to proceed: Bent v. Platnick, 2020 SCC 23.
[5] The facts giving rise to Dr. Platnick’s defamation claim against the defendants are succinctly summarized in the headnote to the Supreme Court of Canada’s decision (I have substituted the initials with the names of the parties for clarity):
The defendant, Maia Bent, is a lawyer and partner at an Ontario law firm [the defendant, Lerner’s LLP]. She is a member and, at the relevant time, was the president-elect of the Ontario Trial Lawyers Association (“OTLA”). The OTLA is an organization comprised of legal professionals who represent persons injured in motor vehicle accidents. The plaintiff, Dr. Platnick, is a medical doctor who is typically hired through insurance companies to review other medical specialists’ assessments of persons injured in motor vehicle accidents and to prepare a final report with an ultimate assessment of the accident victim’s level of impairment. Following two insurance coverage disputes in which Bent was acting as counsel for an accident victim, Bent sent an email to a Listserv (i.e. an email listing) of approximately 670 OTLA members in which she made two statements that specifically mention Dr. Platnick by name and allege that, in the context of those disputes, Dr. Platnick “altered” doctors’ reports and “changed” a doctor’s decision as to the victim’s level of impairment. Bent’s email was eventually leaked anonymously by a member of the OTLA and as a result, an article was published in a magazine which reproduced Bent’s email in its entirety …
[6] The text of Bent’s email is reproduced in Dr. Platnick’s Statement of Claim:
Dear Colleagues,
I am involved in an Arbitration on the issue of catastrophic impairment where Sibley aka SLR Assessments did the multi-disciplinary assessments for TD Insurance. Last Thursday, under cross-examination the IE neurologist, Dr. King, testified that large and critically important sections of the report he submitted to Sibley had been removed without his knowledge or consent. The sections were very favourable to our client. He never saw the final version of his report which was sent to us and he never signed off on it.
He also testified that he never participated in any "consensus meeting" and he never was shown or agreed to the Executive Summary, prepared by Dr. Platnick, which was signed by Dr. Platnick as being the consensus of the entire team.
This was NOT the only report that had been altered. We obtained copies of all the doctor's file and drafts and there was a paper trail from Sibley where they rewrote the doctors' reports to change their conclusion from our client having a catastrophic impairment to our client not having a catastrophic impairment.
This was all produced before the arbitration but for some reason the other lawyer didn't appear to know what was in the file (there were thousands of pages produced). He must have received instructions from the insurance company to shut it down at all costs on Thursday night because it offered an obscene amount of money to settle, which our client accepted.
I am disappointed that this conduct was not made public by way of a decision but I wanted to alert you, my colleagues, to always get the assessor's and Sibley's files. This is not an isolated example as I had another file where Dr. Platnick changed the doctor's decision from a marked to a moderate impairment.
Maia
[text bolded as in the pleading]
[7] In his Statement of Claim, Dr. Platnick alleges that as a result of the publication/broadcast of the defamatory communication in Bent’s email to the OTLA Listserv, he has been “severely injured in his credit, character, reputation, and in the way of his profession, business, occupation and personal life, and has been brought into public scandal, ridicule, odium and contempt.” He seeks damages of $15 million plus punitive and aggravated damages totaling $1.3 million.
[6] The alleged defamatory statement relates to assessments conducted by Dr. Platnick and other medical professionals on the level of impairment suffered by certain insured individuals as a result of motor vehicle accidents. Bent’s email to the OTLA Listserv references two specific impairment assessments that Dr. Platnick is alleged to have altered. The first three paragraphs of Bent’s email relate to an assessment of the level of impairment suffered by the person identified in the publicly filed motion record before me as “Insured 1”. The fifth and final paragraph of Bent’s email to the OTLA Listserv references an impairment assessment of a motor vehicle accident victim identified on this motion as “Insured 2”.
[7] True statements cannot be defamatory. Truth or justification is an absolute defence to a claim in defamation. The essence of the alleged defamatory statement as it relates to Insured 1 and Insured 2 is that Dr. Platnick’s assessments of their respective level of impairment did not fairly or accurately reflect the findings in the reports of the other medical assessors that Dr. Platnick reviewed. The determination of the truth or falsity of this statement will necessarily involve a review of the findings and conclusions regarding the medical histories of Insured 1 and Insured 2 contained in the reports of the medical assessors reviewed by Dr. Platnick. There is no dispute that the assessment reports of Dr. Platnick and some or all of the reports of the medical assessors reviewed by Dr. Platnick in relation to Insured 1 and Insured 2 are relevant to the issues in dispute in this action and that they will be produced on discovery and ultimately at trial. There is also no dispute that these reports contain sensitive and private medical information of Insured 1 and Insured 2.
[8] The moving party seeks a sealing order and publication ban to protect the privacy of Insured 1 and Insured 2. Specifically, the moving party seeks a seeks an order that all documents filed since July 15, 2022 or to be filed in the public court file in this proceeding:
a) refer to Insured 1 and Insured 2 only by those pseudonyms and not by any other names;
b) be redacted to remove any information that identifies or would tend to identify Insured 1 or Insured 2 or their family members;
c) be redacted to remove all information that discloses or would tend to disclose the personal health information, including but not limited to psychologist reports; medical reports, medical records, diagnoses, medical treatment, and other health information of Insured 1 and Insured 1’s family members.
[9] The requested sealing order includes a provision that the unredacted versions of the documents redacted pursuant to the order be filed under seal for the court’s use alone. The moving party further seeks a publication ban in respect of all of the information to be redacted per the sealing order. Notably, the sealing order and publication ban sought would apply to both the identity and the medical information of Insured 1 and their family members but would apply only to the identity of Insured 2. The moving party does not seek a sealing order or publication ban with respect to the assessments or medical reports relating to Insured 2 other than the redaction of Insured 2’s name and other identifying facts from such assessments and reports.
The test for a sealing order/publication ban
[10] Sealing orders and publication bans operate as a restriction on the open courts principle. The Supreme Court of Canada described the importance of the open courts principal in Sherman Estate:
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.[^2]
[11] There is a strong presumption in favour of open courts. A restriction on the open courts principle will only be justified in exceptional circumstances. In Sherman Estate, the Supreme Court set out a three-part test that must be met before the court will grant an order limiting or restricting the open court presumption:
(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.[^3]
[12] Although courts have often granted sealing orders to protect the privacy interests of individuals, not all privacy interests rise to the level of an important public interest required under part 1 of the test in Sherman Estate. Privacy interests will constitute an important public interest where an individual’s dignity is threatened by the release of information. As explained by Kasirer J. speaking for the court:
[73] I am accordingly of the view that protecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test.
[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.[^4] [citations omitted]
[13] Privacy interests relating to an individual’s personal health and medical information have been found to constitute an important public interest as contemplated in Sherman Estate. The Divisional Court recently considered the application of the Sherman Estate test to personal health information in Khan v. College of Physicians and Surgeons of Ontario:
The confidentiality of patient records and of individuals’ personal information (including health information) is an important public interest. The importance of maintaining confidentiality of health records is enshrined in legislation, such as the Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sched. A (“PHIPA”), which permits disclosure of personal health information (including OHIP numbers) only in limited circumstances. Confidential patient health information strikes at the biographical core of an individual and is sufficiently sensitive to warrant the order sought: Sherman Estate, at para. 35.[^5]
Analysis
[14] The moving party seeks different sealing orders and publication bans with respect to Insured 1 and Insured 2. As the order sought with respect Insured 2 is narrower in scope, I will consider Insured 2 first.
Insured 2
[15] Although Dr. Platnick’s assessment of Insured 2’s injuries and level of impairment is a significant element of the alleged defamation in this action, Insured 2 has never been identified on the record in this proceeding outside of the unredacted motion record that was filed under seal on this motion. The evidence relating to the assessment of Insured 2’s injuries and level of impairment filed in the Anti-SLAPP proceedings before Justice Dunphy and subsequent appeals to the Ontario Court of Appeal and the Supreme Court of Canada was redacted to remove information that would identify Insured 2. Further, there have been no other public proceedings relating to Dr. Platnick’s assessment of Insured 2’s level of impairment. Unlike with Insured 1 (as discussed below), there was no arbitration of Insured 2’s level of impairment before the Financial Services Commission of Ontario ("FSCO") and no civil claim for damages filed by Insured 2 against Dr. Platnick arising from Dr. Platnick’s assessment.
[16] Insured 2’s privacy interests to date have been protected through anonymity. As long as Insured 2 remains anonymous, the disclosure of their medical and health details as contained in the relevant reports assessing their level of impairment will not violate their privacy interest and will not pose a threat to their dignity. The publication ban and sealing order sought by the moving party would preserve Insured 2’s anonymity by removing from the public record any information that would identify Insured 2 in the present motion record and going forward.
Sherman Estate test applied to Insured 2
[17] I am satisfied on the record before me that the documents relating to the assessment of Insured 2’s level impairment that have been or will be filed in this action contain details of Insured 2’s medical history and state of health that strike at Insured 2’s biographical core and that the release of those details poses a significant threat to Insured 2’s dignity. There is therefore an important public interest in protecting against such disclosure as contemplated in Sherman Estate. Court openness in this case would result in the public disclosure of Insured 2’s identity in relation to the assessment reports and the medical and health details contained therein posing a serious threat to this important public interest. Part 1 of the Sherman Estate test has been met with respect to the orders sought in relation to Insured 2.
[18] I also find that part 2 of the Sherman Estate test has been met in that the order sought in relation to Insured 2 is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk. A publication ban and sealing order is the only reasonable means of protecting against the public disclosure this information. The only alternative to the order sought would be a broader order that seals and bans the publication of all medical and health information contained in the impairment assessment reports at issue, as opposed to only the information that would identify Insured 2. Such broader order would amount to a far greater restriction on the open courts principle and is therefor not a “reasonable” alternative.
[19] Finally, I find that part 3 of the Sherman Estate test has been satisfied in that, as a matter of proportionality, the benefits of the order proposed with respect to Insured 2 outweigh its negative effects. In balancing privacy interests against the open court principle, it is important to consider whether the information the order seeks to protect is peripheral or central to the judicial process. Per Sherman Estate:
There will doubtless be cases where the information that poses a serious risk to privacy, bearing as it does on individual dignity, will be central to the case. But the interest in important and legally relevant information being aired in open court may well overcome any concern for the privacy interests in that same information. This contextual balancing, informed by the importance of the open court principle, presents a final barrier to those seeking a discretionary limit on court openness for the purposes of privacy protection.[^6]
[20] As discussed above in this endorsement, the medical and health information pertaining to Insured 1 and Insured 2 that is contained in the impairment assessment reports reviewed by Dr. Platnick is potentially central to the determination of the truth or falsity of the alleged defamatory statements. However, the information sought to be protected by the sealing order and publication ban in relation to Insured 2 is restricted to information that would identify Insured 2. Insured 2’s identity is not a central issue in this case. It is peripheral to the judicial determination of the issues. In my view, the public would have very little interest in knowing the identity of Insured 1. Such knowledge would have little or no bearing on the public’s ability to understand any final judgment in the litigation or any interlocutory rulings in the interim.
[21] I would therefore grant the requested sealing order and publication ban as it relates to Insured 2’s identity. The moving party also seeks a publication ban and sealing order with respect to the identities of the family members of Insured 2. There is little evidence before me of any threat to the privacy rights or dignity of Insured 2’s family members. However, it stands to reason that that the disclosure of information or documents that would identify Insured 2’s family members would also identify Insured 2 by association. Accordingly, I would also grant the publication ban and sealing order as it relates to Insured 2’s family members.
Insured 1 (Dr. Laura Carpenter)
[22] Insured 1 and Insured 2 are not similarly situated. Whereas Insured 2 has remained anonymous throughout this proceeding, Insured 1 was identified on the record at an early stage in this action as Dr. Laura Carpenter. Unlike with Insured 2, Dr. Carpenter’s name was not redacted from the evidence filed by the defendant Maia Bent in the anti-SLAPP proceedings. As a result, Dr. Carpenter’s name features prominently in the publicly reported decision of Justice Dunphy on the anti-SLAPP motion and in the appellate decisions that followed. According to the tally conducted by counsel for Dr. Platnick, which has not disputed by the moving party, Dr. Carpenter is identified by name 14 times in the decision of Justice Dunphy, 24 times in the decision of the Court of Appeal and 51 times in the decision of the Supreme Court of Canada. No sealing order or publication ban has ever been sought in relation to Dr. Carpenter’s privacy in any of these courts.
[23] In addition to this action, Dr. Carpenter’s identity and the details of the assessment by Dr. Platnick and others of Dr. Carpenter’s level impairment have been a matter of public record in two other proceedings. The alleged defamatory email to the OTLA Listserv refences an “Arbitration” in relation to the assessment of Insured 1. This was an arbitration commenced by Dr. Carpenter before the Financial Services Commission of Ontario (“FSCO”) in 2014 challenging the determination by Dr. Platnick and others that Dr. Carpenter had not been catastrophically impaired. In the FSCO arbitration the parties filed a 2,857-page joint document book that included Dr. Carpenter’s personal health and medical information. FSCO proceedings are open to the public and the contents of the joint document book were publicly accessible.[^7]
[24] On August 5, 2015, Dr. Carpenter commenced her own civil action in this court against Dr. Platnick and other defendants alleged to have been involved in the assessment of her level of impairment on behalf of her insurer. She sought general damages of $750,000 relating to the initial denial of accident benefits resulting from the allegedly false assessments, plus punitive and aggravated damages totaling $7,000,000. The allegations of wrongdoing against Dr. Platnick in Dr. Carpenter’s statement of claim are similar to the assertions in Bent’s email to the OTLA listserv.
[25] Dr. Platnick defended Dr. Carpenter’s action and brought a crossclaim against certain other defendants. The Carpenter action proceeded through documentary production in 2017, and examinations for discovery in April through August of 2018. On September 11, 2018, Dr. Platnick obtained an order for leave to deliver an Amended Statement of Defence and Crossclaim in the Carpenter action, which order was on consent of all parties, including Dr. Carpenter. The Amended Statement of Defence and Crossclaim was filed on September 27, 2018. Dr. Carpenter’s action was eventually settled at mediation in May of 2019.
[26] Dr. Carpenter is not the moving party on this motion. Dr. Carpenter did not appear on this motion even though she is represented by counsel in this action and recently intervened in, and opposed, a motion brought by Dr. Platnick in March 2023 to amend his Statement of Claim. Instead, this motion for a sealing order and publication ban is brought by the defendant Maia Bent, the same party that filed unredacted evidence relating to Dr. Carpenter and the assessment of her level of impairment in the anti-SLAPP motion and related appeals.
Sherman Estate test applied to Dr. Carpenter
[27] The moving party seeks a sealing order and publication ban in relation to both Dr. Carpenter’s identity and her personal health information. As these two categories of information raise different considerations on the application of the Sherman Estate test I will deal them separately.
Dr. Carpenter’s identity
[28] Similar to the interests sought to be protected for Insured 2, the interest of Dr. Carpenter sought to be protected by the proposed sealing order and publication ban are the privacy of her personal health and medical information. For the reasons given with respect to Insured 2, I find that these privacy interests constitute an important public interest for the purpose of the first part of the test in Sherman Estate. However, I find that court openness as it relates to Dr. Carpenter’s identity does not pose a serious risk to that important public interest.
[29] A key consideration in the determination of the risk posed by court openness is the degree to which the information sought to be protected is already in the public domain. As Kassirer J. explains:
If court openness will simply make available what is already broadly and easily accessible, it will be difficult to show that revealing the information in open court will actually result in a meaningful loss of that aspect of privacy relating to the dignity interest to which I refer here. [^8]
[30] Dr. Carpenter’s identity in relation to the issues raised in this action is firmly ensconced in the public record of this proceeding in the records and decisions in the anti-SLAPP motion and the subsequent appeals. No steps have been taken or proposed to remove this information from the public record. In the circumstances, continued court openness with respect to Dr. Carpenter’s identity would merely preserve the status quo that has existed for the past seven years. It would result in no meaningful loss of privacy to Dr. Carpenter. Such openness does not pose any risk to an important public interest, let alone a serious one. Accordingly, the first part of the test in Sherman Estate has not been met. I would dismiss the motion for a sealing order and publication ban as it relates Dr. Carpenter’s identity for this reason alone.
[31] I also find that Dr. Carpenter has waived her right to any privacy over her identity as it relates to the matters at issue in this action. The Supreme Court of Canada has held that a party who institutes a legal proceeding waives his or her right to privacy, at least in part.[^9] When Dr.. Carpenter issued and filed a Statement of Claim in her civil action against Dr. Platnick in this court she lost all reasonable expectation that her identity would remain private in relation to the overlapping matters at issue in that proceeding and the present action. She has effectively waived any right to claim privacy over her identity in this action. I would dismiss the motion as it relates to Dr. Carpenter’s identity on this basis as well.
[32] Given my finding that court openness relating to Dr. Carpenter’s identity does not pose a risk to an important public interest, it follows that the proposed order relating to her identity is not necessary to protect that interest. The proposed order therefore fails to meet the second part of the test in Sherman Estate and I would also dismiss the motion as it relates to Dr. Carpenter’ s identity on this basis.
[33] The test in Sherman Estate is conjunctive. Having found that the proposed order as it relates to the identity of Dr. Carpenter fails to satisfy the first two parts of the test, I need not consider whether part 3 of the test has been met and I decline to do so. The motion as it relates to the sealing order and publication ban with respect to the identity of Dr. Carpenter (Insured 1) is dismissed.
[34] The moving party also seeks a publication ban and sealing order with respect to the identities of the family members of Dr. Carpenter. There is little evidence in the record before me of any privacy concerns that are personal to the family members of Dr. Carpenter beyond a few very general statements in an affidavit sworn by counsel. In my view there is insufficient evidence of such privacy concerns to support a conclusion that there a risk to an important public interest with respect the identities of these family members. Further, unlike the case of Insured 2, there is no risk that the disclosure of the family member’s identities will disclose the identity of Dr. Carpenter as Dr. Carpenter’s identity is already a matter of public record. Accordingly, I would dismiss the motion as it relates to the identities Dr. Carpenter’s family members. However, such dismissal is without prejudice to the moving party’s ability to renew the request for a sealing order or publication ban with respect to the identity of Dr. Carpenter’s family members on further and better evidence of the nature and scope of the privacy interests of such family members that is sought to be protected.
Dr. Carpenter’s health information
[35] The proposed sealing order and publication ban as it relates to Dr. Carpenter’s health information is relatively broad and short on detail. The notice of motion describes the information sought to be protected as “all information that discloses or would tend to disclose Dr. Carpenter’s personal health information, including but not limited to psychologist reports; medical reports, medical records, diagnoses, medical treatment, and other health information”. The affidavit filed by the moving party indicates that the documents expected to be subject to the sealing order include reports on the assessment of Dr. Carpenter’s level of impairment prepared by Dr. Platnick and others, transcripts of the FSCO proceedings, and documents contained in the 2,857-page joint document book filed in the FSCO proceedings.
[36] The proposed sealing order and publication ban would apply to all documents containing Dr. Carpenter’s health information filed in this action since July 15, 2022 and all such documents to be filed going forward. The proposed sealing order and publication ban would not apply to documents and information filed in this action prior to July 15, 2022, such as the evidence filed in the anti-SLAPP proceedings before Justice Dunphy in 2016. Counsel for the moving party confirmed in oral submissions that the only currently filed document to which the sealing order and publication ban would apply is the Amended Statement of Claim of the plaintiff, Dr. Platnick.
[37] I released my endorsement on Dr. Platnick’s motion to amend his statement of claim on October 17, 2023. Dr. Carpenter intervened on that motion and opposed the amendments, in part, on the basis that the amendments contained allegations relating to her personal health information. As noted in that endorsement, the allegations in the proposed amendments relating to Dr. Carpenter’s personal health information had also been made in Dr. Platnick’s Amended Statement of Defence and Crossclaim filed in the civil action brought by Dr. Carpenter against Dr. Platnick. Dr. Carpenter consented to the filing of Dr. Platnick’s Amended Statement of Defence and Crossclaim in that action. I would therefore dismiss the motion for a sealing order as it relates to Dr. Platnick’s Amended Statement of Claim in this action on the basis that the health information contained in the pleaded allegations is already a matter of public record in the Carpenter action and on the basis that Dr. Carpenter has waived her privacy rights with respect to that particular information.
[38] The balance of the of the proposed sealing order and publication ban is directed at documents and information that has not yet been filed. The documents to be sealed have only been generally described in the record before me. None of these documents have been provided to the court for review, under seal or otherwise. It is unknown at this time specifically which of these documents will be filed in this proceeding or when they will be filed. Documentary discovery has not been completed. Most of the documents that would be caught by the proposed sealing order have not yet been produced on discovery. Many of these documents are still in the possession of non-parties. Even if the documents are produced on discovery that does not mean they will be filed on the public record. It is possible that none of these documents will be filed before trial and that many may never be filed.
[39] The scope of the proposed publication ban is similarly vague and uncertain. The order requested in the notice of motion broadly seeks a ban on the publication, broadcast or transmittal of the “health information” of Dr. Carpenter and her family. “Health information” has not been further defined.
[40] In my view, the combination of:
a) the moving party’s failure to provide the court with copies of the documents that will be subject to the proposed sealing order;
b) the moving party’s failure to provide evidence identifying and specifying the information that will be subject to the publication ban; and,
c) the uncertainty as to whether and when the subject information and documents might be filed or otherwise put on the public record in this action,
is fatal to the motion for a publication ban and sealing order as it relates to the health information of Dr. Carpenter and her family. The three-part test set out in Sherman Estate is predicated on the court having full details of the scope and effect of the requested order. Absent that information, the motion must fail.
[41] Without knowing the precise scope or effect of the order requested, I am unable to determine whether court openness (the absence of the requested order) poses a serious risk to an important public interest or whether the order is necessary to prevent such a risk. For example, it is unknown whether the information and documents that will be caught by the proposed order will be information and documents that have already been filed on the public record in this action prior to July 15, 2022, or filed or placed in the public record in the appeals to the Court of Appeal and the Supreme Court of Canada, in Dr. Carpenter’s civil action against Dr. Platnick or in the arbitration before FSCO. Further, without knowing the scope of the proposed order it is impossible for the court to weigh the comparative effectiveness of alternative measures that might be implemented per part 2 of the Sherman Estate test. It is similarly impossible in the circumstances for the court to identify the negative effects of the proposed order for the purpose of conducting the proportionality analysis required under part 3 of the Sherman Estate test.
[42] The proposed order as it relates to health information fails to satisfy all three parts of the Sherman Estate test. Accordingly, the motion for a sealing order and publication ban as it relates to the health information and documents of Dr. Carpenter and her family members is dismissed. This dismissal is without prejudice to the moving party’s ability to seek a future sealing order or publication ban in relation to the health information of Dr. Carpenter or her family provided that the record on such future motion addresses the defects in the current record that I have identified in this endorsement, including each of the three defects listed in paragraph 40 of this endorsement.
[43] The prospect of a future motion for a sealing order in respect of documents containing Dr. Carpenter’s health information was addressed by the parties in their oral submissions on the motion. One of the concerns addressed was the potential for such documents to be filed on the public record before a motion for a sealing order could be brought. Counsel for Dr. Platnick indicated that while he did not anticipate that the plaintiff would be filing such documents in advance of trial, the plaintiff would be prepared to give reasonable notice of any intention to file such documents to provide the defendant with an opportunity to seek a sealing order. In my view, it is reasonable in the circumstances to require such prior notice be given. I have ordered such notice to be given in similar circumstances in a recent case.[^10]
[44] The plaintiff shall therefore give the defendants 30 days’ notice in advance of filing any documents that contain the health information of Dr. Carpenter or her family. This notice requirement applies only to documents that have not already been filed in this action. Any documents already filed on the public record in this court or in the records on the appeals of the anti-SLAPP ruling before the Ontario Court of Appeal and the Supreme Court of Canada are excluded from the notice requirement. The notice requirement applies to documents filed in the FSCO arbitration provided they have not also been filed in this action. However, the inclusion of the FSCO documents in the notice requirement should not be interpreted as a determination by me that any of the FSCO documents are properly the subject of a sealing order. The notice requirement applies only to documents filed in advance of trial. Any advance notice requirement for documents filed at trial will be at the sole discretion of the trial judge.
Costs
[45] In their oral submissions, all parties agreed that there should be no costs of the motion, regardless of the outcome.
Disposition
[46] For the reasons given above:
a) The motion for a preservation order and the production of documents from non-parties is granted.
b) The motion for a publication ban and sealing order as it relates to Insured 2 and the family members of Insured 2 is granted.
c) The motion for a publication ban and sealing order as it relates to the identity of Dr. Laura Carpenter (Insured 1) is dismissed.
d) The motion for a publication ban and sealing order as it relates to the identities of Dr. Laura Carpenter’s family members is dismissed. This particular dismissal is without prejudice to a future motion seeking such relief as provided in paragraph 34 of this endorsement.
e) The motion for a publication ban and sealing order as it relates to the health information of Dr. Laura Carpenter and her family members is dismissed. This particular dismissal is without prejudice to a future motion seeking such relief as provided in paragraph 42 of this endorsement.
f) The plaintiff shall give the defendants 30 days’ notice in advance of filing any documents that contain the health information of Dr. Carpenter or her family members, as more particularly described in paragraph 44 of this endorsement.
g) There shall be no costs of the motion.
[47] At the hearing of the motion the parties handed up a form of order for the preservation and production of documents from non-parties and the publication ban and sealing order as it relates Insured 2, the family members of Insured 2 and the family members of Dr. Carpenter, that was agreed to by all as to form and content. I have removed the provision relating to Dr. Carpenter’s family members and signed the order with today’s date. I note that the Order I signed includes the name of Insured 2. It will need to be redacted and filed under seal pursuant to its terms. The requirement for the plaintiff to give advance notice of the filing of documents provided in paragraphs 44 and 46(f) of this endorsement is effective immediately, without the need for a formal order.
D. Michael Brown, Associate Judge
DATE: 2023-11-16
[^1]: At a case conference on May 26, 2023, as an interim measure pending the determination of the motion, I directed that the moving party be permitted to file redacted motion materials in the public court file that redacted the names and personal health information of Insured 1 and Insured 2, with unredacted copies of the motion materials served on the other parties and provided to me under seal by email through my assistant trial coordinator.
[^2]: Sherman Estate v. Donovan, 2021 SCC 25 at para. 1
[^3]: Sherman Estate, at para. 38
[^4]: Sherman Estate at paras. 73 and 75
[^5]: Khan v. College of Physicians and Surgeons of Ontario, 2023 ONSC 848, at para. 11
[^6]: Sherman Estate at para. 106
[^7]: The FSCO Arbitration was settled in 2014. It is not clear on the record before me whether documents filed in the FSCO arbitration remain accessible to the public today or whether they were removed from the public record after a period of time once the arbitration had concluded.
[^8]: Sherman Estate, para. 82
[^9]: Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51, para 42
[^10]: Schulz v. S.A. Armstrong Ltd, 2023 ONSC 2246