Dignified Access to Hearing Exhibits

A Supreme Court of Canada decision on sealing a court file may have implications for access to exhibits at discipline hearings. In Sherman (Estate) v. Donovan, 2021 SCC 25 (CanLII), https://canlii.ca/t/jgc4x the estate Trustees of a prominent family sought to seal the court file related to the estate. The deceased remain subject of an active murder investigation.

In setting aside the sealing order made by the trial Judge, the Court emphasized the open court principle. The test to seal a Court file was articulated as follows:

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

    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.

The Court held that “Neither the susceptibility of people nor the fact that the advertisement is disadvantageous, embarrassing or distressing to some people will generally, on their own, justify an infringement of the principle of open court proceedings…”. Rather “the information in the court file is sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity.” Examples of this rather vague test include: “information related to stigmatized medical conditions …, stigmatized work …, sexual orientation …, and subjection to sexual assault or harassment …”.

A sealing order can also be justified where there is a serious risk of physical harm should the information become public.

The Court also set out a number of considerations about whether alternative measures (such as redacting portions of the documents or banning publication) are sufficient in balancing the proportionality of the benefits and negative effects of a sealing order.

Hearing tribunals may have to apply a similar analysis when determining public access to their hearing exhibits. For example, many hearing tribunals routinely disallow public access to client or patient files. To avoid this issue, some regulators are redacting the identity of client information from documents before they are filed as exhibits.

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