The Open Court Principle and Evidence of Harm: The Dust Created by Sherman Estate

I wrote about the Supreme Court of Canada’s recent restatement of the open court principle in a column last year. In that column I suggested that the court had opened the door for more requests for closed hearings in its decision of Sherman Estate v. Donovan, 2021 SCC 25. Some courts have disagreed with this assessment and at least one court has agreed with it. What is clear from the recent caselaw is that courts are more focused on the evidence necessary to support confidentiality in what would otherwise be open proceedings. Speculation of harm to an important public interest is not sufficient, but it is still not clear when circumstantial evidence will be sufficient and when direct evidence of harm will be required.

As a brief recap, prior to Sherman Estate, the test for confidentiality orders was set out by the Supreme Court in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41:

(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

In Sherman Estate the test was reformulated, requiring the person seeking limits on an open court to establish that:

(a) court openness poses a serious risk to an important public interest;

(b) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and

(c) as a matter of proportionality, the benefits of the order outweigh its negative effects.

The Supreme Court stated in the decision that its reformulation did not alter its “essence” (paragraph 38). This new three-step test was described in Fraser v. Canada (Public Safety and Emergency Preparedness), 2021 FC 821 as a restatement of the principles set out in Sierra Club. In Regional Municipality of Halton v. Ohashi, 2021 ONSC 6780, the court stated that Sherman Estate “did not alter in any way the law with respect to the open court principle” (paragraph 99) and that the decision “added further clarity on the open court principle” (paragraph 100). See also, Shell Canada Limited v. The Queen, 2022 TCC 39 (Federal Tax Court) at paragraph 16.

However, other decisions that have followed Sherman Estate have been divided on whether the reformulated test is more restrictive or less restrictive (in other words, is the open court principle more protected or less protected?).

In A Lawyer v. The Law Society of British Columbia, 2021 BCCA 284, the court noted that Sherman Estate had modified the law “and made the test more stringent” (at paragraph 70). In Doe v Canada (Attorney General), 2022 ABQB 487, the judge stated that he believed the reasoning in Sherman Estate “opens the door to challenges to the open court principle that previously did not exist” (at paragraph 24). The judge stated that by asserting the “superordinate importance of human dignity” and by viewing dignity through the lens of control over how others perceive us and our ability to control disclosure of information which we, as individuals, believe is sensitive or personal, the Supreme Court of Canada has “dramatically expanded opportunities to seek abrogation of the open court principle”. In the judge’s view, Sherman Estate held that an individual’s opinion about the sensitivity of their information outweighs the opinion of the courts or anyone else. He continued:

 …Under the Sierra Club analysis, courts assessed requested court openness restrictions based on the nature of the information in question. In my view, by emphasizing an individual’s “biographical core” and right to control their public presentation through selective disclosure of information, Sherman significantly elevates the subjective element. If a party’s sense of personal dignity could be compromised by disclosure of the information in question, I read Sherman as saying that they have the right to seek contraction of court openness.

Courts and tribunals have had a year and a half to digest and apply the restatement by the Supreme Court. As the court emphasized, each request for confidentiality must be assessed on its own facts. What is of particular interest to parties and decision-makers is what evidence is required to support a confidentiality order.

The importance of evidence of risk of harm

Once an important public interest has been established, a person seeking to limit the openness of a proceeding is then required to demonstrate that there is a serious risk to this public interest. In Sherman Estate (at paragraph 97), the court noted that direct evidence was not necessarily required to establish a serious risk to an important interest. It is possible to identify “objectively discernable harm” on the basis of “logical inferences”. However, a process of inferential reasoning was not a “licence to engage in impermissible speculation”. Any inferences need to be grounded in objective circumstantial facts that “reasonably allow the finding to be made inferentially”. The court relied on the distinction between inference and speculation as expressed in R. v. Chanmany, 2016 ONCA 576, at paragraph 45:

…An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established at trial. There cannot be an inference without objective facts from which to infer the fact or facts a party seeks to establish. On the other hand, speculation involves theorizing in the absence of evidentiary support. Speculation occurs when a conclusion is reached in the absence of positive, proven, objective facts from which an inference may be drawn.

In R. v. Klos, 2022 BCCA 105, the chambers judge denied a sealing order for a correctional officer who was seeking an extension of time to appeal a conviction on a summary conviction offence for disorderly conduct. Mr. Klos argued that publication of the court record would have an impact on his physical safety as well as his job performance. The judge stressed the importance of establishing a real and substantial risk of harm that is grounded in evidence (at paragraph 9):

… While it is not necessary for an applicant to present direct evidence to establish a serious risk to an important interest, facts and evidence must exist from which the court can draw a logical inference—the court cannot rely on speculation …

In Klos, the judge concluded that Mr. Klos had not identified “any particular antagonistic relationship” but had only pointed to the general inmate population. He also did not provide direct or indirect evidence that disclosure of his conviction would lead current or former inmates to harm him. The judge also noted that no reference to his employment as a corrections officer would be made during the appeal proceeding (other than, of course, in his application for a sealing order).

In Doe, the court was assessing a request for anonymization of a plaintiff who was suing the Canadian government and the Royal Legion for breach of fiduciary duty and breach of privacy arising out of unauthorized access and disclosure of personal information. In the statement of claim, the plaintiff asserted that they had PTSD, major depressive disorder and adult attention deficit disorder. They also alleged that during their military service, they were the victim of a sexual assault. The court agreed that stigmatized medical conditions and sexual assault were “of such an intimate and personal nature as to bear directly on their personal dignity” and that its protection was an important public interest.

The plaintiff in Doe attached to their affidavit a letter from their treating psychotherapist that stated (paragraph 38):

As [A.B.’s] treating psychotherapist, I believe that publication of [A.B.’s] name and identifying information in connection with a legal action for breach of privacy would adversely impact [their] mental health. Throughout our clinical work, it has been evident that non-consensual publicity and disclosure of personal information causes [A.B.] significant distress, and reminders of the alleged breaches of privacy continue to negatively impact [their] mental state.

The court found that this was sufficient evidence to support a confidentiality order.

This is in contrast to S.Y.L. v C.M.S., 2022 BCSC 572, a personal injury claim. In that case, counsel for the plaintiff suggested in his cross-examination of a psychiatrist called by the respondent that the inclusion of the plaintiff’s name in published reasons for judgment might be detrimental to her health in terms of “disappointment” should her friends come across such reasons. The psychiatrist responded that it might. The court held that this “quick and ambiguous exchange” (paragraph 128) could not reasonably be accepted as sufficient evidence to show serious risk of psychological distress: the assertions of potential harm did not rise above speculation. The application for an anonymization order was denied. However, the court continued (at paragraph 131):

That said, if after reading these reasons for judgment, the Plaintiff is of the view that their publication will cause her tangible psychological harm such that an anonymization order is necessary, she is free to apply for such relief by presenting a fresh application in writing supported by affidavit evidence …. Such an application must be filed within two weeks of the date of these reasons for judgment … In the interim, I will direct that these reasons not be published to permit the Plaintiff to consider her position. If after two weeks the Plaintiff has not brought such an application, these reasons will then be published in the ordinary manner.

It is not clear if the plaintiff brought such an application – of note is that the decision remains anonymized on CanLII and on the BC Supreme Court website as of October 2022.

In Khan v. Law Society of Ontario, 2022 ONSC 1950, a disbarred lawyer brought a motion for a sealing order of medical records that were part of the evidentiary record of his professional misconduct proceeding. He had relied, in part, on medical records for his defence related to the state of his mental health. The court granted the motion. The court noted that Mr. Khan has been diagnosed with several physical illnesses and several mental illnesses. It also noted that he has a history of suicidal ideation and risk of self-harm when his mental illnesses are made public or when material he considers shameful is made public. His doctor provided the following report (at paragraph 40):

[Mr. Khan] cannot help thinking about recurrence of these ideas if his reputation gets destroyed as a professional lawyer, especially if his personal and medical information gets published as part of the court proceedings. I think it is only natural for him to feel that way. He is unable to cope with the idea that his information gets publicized. He sees no other way for his life to go on unless he is a reputable lawyer. He is dreadful to the idea that his medical file will be publicized. He feels his drive to go on in life is closely linked to being a successful lawyer and cannot see things any other way. It is clear that he has a very narrow view of what life could offer. Nevertheless, he cannot help thinking this way. So far, he sought many treatments in the form of counseling, psychotherapy, and medications. He feels he will end up in a deep hole mentally if he loses his reputation as a professional lawyer. I believe he’s right. I think it’s necessary that every step should be taken to avert future self-harm including suicide.

The court found that there was sufficient information about the facts of the case already in the public record and that the record was a transparent one, explaining how and why he came to have his license revoked: “there is no reason to dig deeper into this material” (paragraph 51). The court found that this was a case where the open court principle was only “modestly encroached upon” and that further disclosure of his medical records would “unnecessarily affront his dignity, perhaps exacerbate his physical and mental health and be more than just discomfort or embarrassment, which may continue in any event” (paragraph 52).

In Windels v Canadian Broadcasting Corporation, 2022 SKCA 72, the parties seeking a publication ban alleged that the vulnerable clients of a homeless shelter (Lighthouse) would suffer physical and emotional harm if details of an oppression application were made public. One of the applicants deposed that there would be irreparable harm to the organization, claiming that the release of the information would make it more difficult for it to operate and carry out its work for vulnerable people in the community. Another manager at the organization deposed that release of information prior to the completion of the Christmas fundraising campaign would negatively impact that campaign. She also asserted that “if the internal conflict of the Lighthouse is publicly aired, it risks the confidence of our funders and the operations teams’ ability to carry out the lifesaving services we provide on a daily basis”.

The court held that maintaining access to certain services provided by the charity, such as emergency shelter and sustenance for impoverished and at‑risk clients, could certainly constitute an important public interest for the purpose of the Sherman test. However, the court held that the evidence of the risk “was not only thin, but largely speculative” and did not withstand close scrutiny (at paragraphs 59-60). The court suggested that evidence that an emergency shelter would likely shut down or be forced to reduce capacity would have enabled the judge to conclude that the first part of the Sherman Estate test was satisfied. The court noted that there was no concrete evidence to support such a finding and that, to the contrary, the evidence showed that the charity was both long-established and deeply rooted in the community and had substantial financial reserves.

Pothier v. Canada (Attorney General), 2021 FC 979, was a judicial review application where the applicant requested the disclosure of the identities of witnesses in an investigation of a workplace violence complaint. The applicant was the complainant in a complaint that was dismissed by an investigator. The regulatory regime for workplace violence complaints provides that the names of witnesses are confidential, unless the witness consents to disclosure. The respondent was of the view that disclosing identifying information without consent would result in a risk of retaliation from the complainant.

The investigator provided an affidavit that stated that several witnesses and respondents to the complaint did not consent to the disclosure of their identities to the complainant. None of these individuals provided affidavits explaining why they did not consent. There was also no evidence from the investigator of his experience in dealing with complaints of workplace violence, such as information about the reluctance of some to submit a complaint or to participate in the process in the absence of a guarantee of anonymity, or about the frequency of such requests. The judge noted that although this evidence might satisfy an applicant’s burden of proof, it was not mandatory and its absence was not fatal to the application.

The court determined that the prevention of violence in the workplace was in the public interest and was the type of important public interest that might warrant the protection of a confidentiality order in appropriate circumstances. The court held that the risk of harassment, intimidation, or potential violence associated with the disclosure of a potential witness’s identity explained the reluctance of a witness to participate in an investigation if their name was disclosed without consent. The court also accepted that the assurance of anonymity given to persons involved in investigations contributes to the effectiveness of the anti-violence prevention.

The court analogized workplace violence complaints to sexual assault complaints and applied the same reasoning to justify a confidentiality order. The court noted that although the witnesses did not explain why they refused to consent to revealing their identities, this refusal indicated that it was an important factor in their decision to participate in the investigation. The court noted that although the complainant alleged that a confidentiality order would deprive him of a fair hearing, he did not demonstrate why this would be inevitable. The court noted that if the applicant could prove that the redaction of names prevented him from making his case, he could make that argument before the trial judge.

These cases highlight the importance of evidence to support a claim of a serious risk of harm. The challenge for parties seeking to restrict the openness of hearings is knowing what evidence a decision-maker will require. In some cases, circumstantial facts may be sufficient – for example, it is routinely accepted that identifying sexual assault victims would dissuade individuals from reporting assaults. However, in other situations, circumstantial facts will not be enough, as we have seen with claims of psychological distress. It may take a while for the dust of Sherman Estate to settle so that we know when direct evidence is required and when circumstantial information is sufficient.

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