This recent Ontario Court of Appeal decision dealt with a very heated issue that involved various intervenors who all had strong opinions on whether motions for court approvals of a settlement involving a party under disability, brought under Rule 7.08 (herein “Rule 7.08 Motions”) should be presumptively sealed in order to “protect” the party under disability.
The appellate court agreed that such motions “generally will … include sensitive and personal information about the party whose claim is being settled,” and in this digital age “personal information made part of a public court record may be vulnerable to wider and more permanent circulation than ever before.”
Despite this acknowledgement, however, the appellate court disagreed that a presumptive sealing order was required for all Rule 7.08 Motions.
The appellate court was of the view that the presumption should be the exact opposite – court proceedings should be open to the public, including Rule 7.08 Motions. The appellate court reasoned that making the process presumptively confidential:
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- would screen an important role of the courts from public view in a sweeping fashion;
- would keep citizens uninformed of the protection provided to vulnerable parties through judicial oversight;
- would prevent the public from seeing that judges are acting fairly and in a manner consistent with societal values; and
- would prevent similarly situated people from gaining an understanding of how they may be treated by the judicial process.
The appellate court was satisfied that judges had adequate discretion under Rule 7.08 to invoke orders and remedies to protect sensitive information if such was required, such as the power to:
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- anonymize the parties (ie: using initials instead of parties’ names;
- order a publication ban;
- order some material be redacted;
- order a portion, or all, of the record be sealed.
In the case before the appellate court, the motion’s judge refused to grant the requested sealing order, and only agreed to anonymize the parties. The Plaintiffs appealed, citing that the sealing order ought to have been made in order to protect the privacy and dignity of the Plaintiff; to protect the confidential business records of Plaintiff (a doctor who was catastrophically injured in the subject accident); and to protect Plaintiff’s right to solicitor-and-client privilege.
Although the appellate court fully recognized many of the privacy concerns raised by the Plaintiffs, ultimately none of those concerns alone, or collectively, convinced the appellate court that the Rule 7.08 Motion Record required more concealment, as follows:
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- right to privacy: Although protecting a person’s privacy is important, it is invariably lost to some extent when a claim is brought, keeping in mind that the pleadings alone will often tell a fulsome story about the plaintiff(s) and their plight; There can be occasions when the identity of the plaintiff may cause harm or significant risk to the plaintiff, and in those rare circumstances the pleadings can be anonymized;
- Making Private Settlements Public: Although it may seem unfair to require a party under a disability to publicly disclose their settlements whereas all other litigants can keep their settlements private and confidential, the appellate court reasoned that having the process open to public scrutiny actually protects the party under disability more than keeping their settlements private, and as noted above, if certain issues arise that cause risks, etc, the court has discretion to tailor a remedy that addresses those issues;
- Protecting Solicitor and Client Privilege: The appellate court recognized the real concern that can arise when Plaintiff’s counsel completes an Affidavit outlining the potential weaknesses in the Plaintiff’s case that lead to the proposed settlement, keeping in mind that if the court does not approve the settlement, the case may proceed to trial with all of the Plaintiff’s vulnerabilities exposed to the Defendant. However, the appellate court believed this could be adequately addressed by how Plaintiffs’ counsel “prepare affidavits for r.7.08, so as to minimize the disclosure of privileged information, and the basis on which they may seek specific redactions in the context of specific cases where such disclosure is viewed as necessary to obtain judicial approval.” The appellate court also said that “where there is a basis for a concern that a settlement may not be finalized in the circumstances of a particular case, a motion judge has the option of ordering a temporary sealing order, which would end once the settlement is finalized“;
- Protecting the Legal Fee Arrangement: Although the amount and breakdown of legal fees is presumptively privileged, the appellate court reasoned that by the time the parties arrive before the court on a Rule 7.08 Motion, there is no privilege to protect, and even if there was, it must be waived so that the court can rule on the appropriateness of the legal fees being charged to the party under disability.
As the appellate court reasoned, “no party is compelled to bring a r. 7.08 motion.” Put another way, partes under disability are free to go to trial, and hash everything out, including the legal fees, in open court (ie: a very public forum). However, if that option is not pursued, and instead the plaintiff’s guardian chooses to settle, rule 7.08 is a protective provision to ensure settlements are in the interests of the parties under disability: “Rule 7.08, properly construed, is a benefit to the parties to the litigation, not a burden on litigation guardians and counsel.”
S.E.C. v. M.P., 2023 ONCA 821 (CanLII)
https://www.canlii.org/en/on/onca/doc/2023/2023onca821/2023onca821.html