The principle of open hearings has taken on greater significance in recent years. It is rare for the privacy interests of a party to regulatory proceedings to meet the stringent public interest test for anonymizing their name. However, in a recent Ontario Divisional Court decision, the risk of trauma to the children of an applicant for registration was seen as justifying a temporary order.
In Law Society of Ontario v. A.A., 2024 ONSC 3102 (CanLII), an applicant for registration acknowledged sexually abusing several children in 2009. However, the tribunal (both hearing and appeal levels) concluded that the applicant was currently of good character and directed that he be registered with one condition: he could not meet with children alone. The regulator sought judicial review. The issue in this motion was whether the anonymization of the applicant’s identity should continue in the court proceedings.
The evidence was that the applicant’s children did not know of the abuse committed by their father. The Court accepted that their learning of their father’s earlier conduct would be traumatizing. The Court specifically found on the evidence that the applicant and his former spouse had not withheld this information from their children as a means of protecting the privacy of the applicant. The Court found that a temporary order requiring anonymization until the application could be heard by the full court resulted in a minimal infringement of the open court principle. The public would have access to all information other than the identity of the applicant (and his family).
However, the Court telegraphed that the order might well not continue if the applicant was successful in obtaining registration:
The impact of an anonymization order will be quite different, however, if AA is successful and is entitled to be licensed. The Law Society has an obligation to regulate in the public interest: Law Society Act, R.S.O. 1990, c. L.8, s. 4.2. Part of the public interest necessarily involves notifying the public of misconduct by lawyer (and paralegal) licensees so the public can make an informed decision whether to hire a particular lawyer. The Law Society maintains a public directory of lawyer and paralegal licensees. The directory says whether the licensee has a “regulatory history” and provides details of that history. The directory is one way the Law Society can give notice to the public that a licensee has engaged in misconduct in the past.
Disclosing AA’s identity will take on much greater significance if he is successful on the judicial review application and the Appeal Division’s finding that he is of good character is upheld. Subject to any further appeal, AA would then be entitled to be licensed. The Law Society would then have a very strong interest, consistent with its statutory mandate, in having the anonymization order lifted so the public could make an informed decision about whether to retain AA with the full knowledge of what he has done. If, however, the Law Society is successful in its judicial review application and AA does not meet the criteria for a license, the public interest in AA’s identity may be significantly reduced.
Because of the unique circumstances of this case, it is unlikely that there will be an opening of the floodgates resulting in frequent anonymization orders to protect the family of registrants in regulatory proceedings.