It’s important to have open courts. We cannot truly trust a court system that is not transparent. British history tells us about the Star Chamber, the often-secret court where a group of select elites made judicial decisions designed to favour the Crown without any real or meaningful attempt to present evidence or allow representation. Even now, our free and open court system can cause us to feel morally superior to Russians and pretend democracies around the world who engage in pantomime justice.

 

But is complete transparency all the time the best solution in all cases? Some would argue that it is not.

 

Joe Dart, a partner at Bergeron Clifford Injury Lawyers, recently appeared as co-counsel for the Ontario Trial Lawyers Association (OTLA) in the Ontario Court of Appeal as it intervened in a case that considered whether privacy rights and the right to dignity can sometimes outweigh society’s interest in the open court principle.  The case is reported as S.E.C. v. M.P., 2023 ONCA 821.

 

Lower courts upheld the open court principle in two cases where injured parties had asked those courts to seal the court records associated with the settlement of their cases.

 

In the first of the two cases, a 63-year-old doctor was struck by an SUV while out walking. He suffered extensive brain injuries and was found to be incompetent.  A Guardian for Person and a Guardian for Property were appointed.

 

When the case settled, his lawyers asked that the records be sealed to protect his privacy and dignity, to protect the confidential records of his business and to protect his solicitor and client communications.

 

In the second case, a seven-month-old suffered catastrophic brain damage after a seizure caused by medical negligence.  When this case settled, the child’s lawyers asked that the court records be sealed to help protect the child from his estranged father and to help protect communications between the child and lawyer representing him.

 

The lower courts were asked to do two things in each case. The first and most important was to approve the proposed settlements. The Rules of Civil Procedure in Ontario stipulate that no case involving a child or a party under disability may be settled without judicial approval. This is a rule designed to protect vulnerable parties. Insofar as children are concerned, the courts’ right and duty to conduct this review is called its parens patriae jurisdiction. This Latin phrase means ‘in the place of a parent’.

 

The second thing the lower courts were asked to do was seal the court records surrounding the application for court approval of the settlements. The court record for approval of a settlement will include not only documents detailing how the injury occurred but also the individual’s medical records, educational records, employment records, and financial records. Medical records are comprehensive and include not only evidence of physical health but also mental health and can often include counseling records.

 

The first request, court approval of the proposed settlement is mandatory. No proposed settlement is binding without court approval. The second, sealing of the court records, is discretionary. The parties can ask for this measure and the court has the option of granting or denying it. Making extensive reference to the open courts principle, the Court of Appeal refused to seal the court records in both cases.

 

The Court of Appeal approved the proposed settlements. In its analysis, the Court of Appeal said that much of the information the vulnerable applicants wanted sealed would have been brought out into the light had the cases not been settled and gone to trial. This is true. It is also true that many litigants settle their injury claims to prevent this very outcome. In a blow to privacy rights, the Court of Appeal did not consider Dr. C’s right to keep his medical records private compelling enough to order it sealed.  As a compromise, the parties’ names were kept anonymized through the use of their initials.

 

Many litigants settle their claims without trial fully expecting that the amount of their settlement is private. The Court of Appeal felt that the open courts principle, the right for the public to see justice at work, was more important than the rights of these two litigants to that protection. Regarding the child, the Court found that there were too few specifics detailing the harm that might ensue should the estranged father gain information regarding the settlement.

 

It was not the result the plaintiffs or OTLA were hoping for.  It should be noted that privacy rights of parties in court proceedings are upheld and protected without much controversy in many other contexts, including criminal law, family law, and in certain civil cases involving sexual abuse.  It has long been felt by the plaintiff’s bar that courts have not given plaintiffs in personal injury cases, whose privacy interests are no less significant or compelling, proper consideration.  This decision gives further credence to that feeling.

 


 

Joseph Dart is a partner at Bergeron Clifford LLP. He graduated from Yale University in New Haven, CT. He graduated from Queen’s University Law School in 2005, where he received several course prizes.

Joseph was called to the bar in 2006, and began his legal career as a crown prosecutor in the Crown Attorney’s Office, first in Scarborough, and later in Belleville, where he worked on various high-profile criminal cases. During his time with the Crown’s Office, Joseph litigated many cases in both the provincial and superior courts of Ontario.

Joseph joined Bergeron Clifford in 2015, and represents plaintiffs in negligence, medical malpractice and auto cases.  He has tried and argued cases before the Ontario Superior Court of Justice and Ontario Court of Appeal, along with the License Appeals Tribunal, Social Security Tribunal of Canada and Workplace Safety and Insurance Appeals Tribunal.

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