Pub Bans and Sealing Orders

Foulidis v Foulidis 2016 ONSC 6732

Post Media brought a motion to set aside the sealing order made on consent by Kruzick J. dated August 5, 2016.

Postmedia’s position was that the sealing order flies in the face of the “open court” constitutional principle entrenched into our law by s. 2(b) of the Charter. It submitted that the order was obtained improperly, both from a procedural and legal perspective, because:

a. The media was not given any notice of the intention to seek a sealing order;

b. The motions judge was not directed to the legal test that must be applied to any order restricting public access to court proceedings; and

c. The application of the evidence before the court did not establish that a sealing order was necessary in the circumstances.

Postmedia’s procedural objection is that notice to the media should have been provided before the sealing order was presented to the motions judge on consent. I agree. While there may be exceptional circumstances in which such notice may be dispensed with, as the Practice Direction recognizes, the parties did not submit evidence or submissions in support of such a position.

Harvinson Young, J., stated:

There is no dispute that in exercising its discretion under s. 137 of the Courts of Justice Act, and s. 70 of the Children’s Law Reform Act, the court must apply the two-part Dagenais-Mentuck test set out by the Supreme Court of Canada. The court must be satisfied that any constraints or limitations to the open court principle are warranted pursuant to that test.

Justice Harvison Young set the following conditions:

1) The sealing order of Kruzick J. dated August 5, 2016 is vacated.

2) A publication ban is ordered with respect to the rest of the file, except that it does not apply to the affidavits of 1) Mr. Foulidis dated July 14, 2016, and 2) Mrs. Foulidis dated June 9, 2016, or to the attachments to those affidavits, subject to paragraphs 3 and 4 of this Order. This publication ban will expire in 30 days from today.

3) A publication ban is ordered with respect to any information that identifies the Foulidis children, including references about or to their status, alleged incidents involving the children, or alleged harm to the children.

4) A publication ban is ordered with respect to any and all allegations or references to mistreatment made by any members of the immediate or extended family against any other members of the immediate or extended family.

5) A publication ban is ordered with respect to any personal identifiers of any persons, other than names, such as dates of birth, telephone numbers, license plate numbers, social insurance numbers, bank account numbers, and addresses.