December 12, 2023
S.E.C. v M.P. 2023 ONCA 821

These appeals concern the scope and limits of the open court principle in the context of the court approval of settlements involving minor parties or parties under disability as required by r. 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

In particular, both appeals concern the denial of sealing orders over motion records for r. 7.08 settlement approvals.

The appeal was dismissed.

The ONCA deals with a range of issues that will be helpful to the media in other matters, including finding that privacy was not at serious risk in these cases. Regarding the DM/Sherman Estate test, the Court held that the appellants’ bases for seeking a sealing order (in addition to privacy, they relied on the protection of vulnerable litigants, and protection of solicitor-client privilege) all fail the first step of the test.

Sossin J went on to say that even if any of these had made it past the first step, they would have failed at the second and third steps as well. There is also an endorsement of the appropriateness of tailored orders where something is necessary, rather than broad brush sealing.

[75] … Medical records may be, but are not necessarily, revealing of core aspects of a person’s identity. Where they are, anonymizing those records or otherwise redacting the record may address any risk without the need for a sealing order. Similarly, the appellants have not demonstrated that information, including the motion record, in the public court file would undermine Dr. C.’s dignity by striking at his “biographical core.” These issues were properly addressed by the motion judge and found to not meet the high bar of a serious risk to an important public interest.

In addition, there is strong endorsement of the importance of oversight when dealing with vulnerable litigants, a determination that parens patriae doesn’t grant a freestanding reason for a sealing order.

On solicitor client privilege, the Court endorsed the view that there is nothing inherent in Rule 7.08 that compels the disclosure of privileged material and it’s incumbent upon counsel to draft their affidavits accordingly.