The “rule of law” is a defining feature of western democracies. Briefly described, it is the insistence that all government action be based in law, and is contrasted with acts of tyranny, dictatorship, and arbitrary exercises of power. The central role that the rule of law plays in Canadian society is most clearly seen in the one-sentence preamble to the Constitution Act, 1982: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

One of the principles of the rule of law is that court proceedings are open and transparent – among other reasons, openness helps ensure that a country’s laws are applied consistently and fairly to all people. To ensure transparency, the public can follow along at every stage of a court proceeding (with some exceptions): the materials filed by the parties to a proceeding can be viewed at court houses, the court room where the hearing takes place is open to the public, and written decisions of the court are published and searchable.

However, there are occasions where the public’s interest in having an open and transparent legal system buts up against an individual’s right to privacy. Privacy concerns arise frequently in trusts, capacity, and guardianship matters where an individual’s medical and financial information is necessary evidence to determine an issue in the proceeding. While all materials filed in a proceeding are available to the public, the individual whose records are being disclosed may wish to keep the information private. How the courts weigh these interests is illustrated in the matter of Winter v. Sherman Estate.

The underlying litigation involved the now deceased Barry Sherman and his company, Apotex Inc. The claim was brought against Barry and his company by Barry’s nephew, Kerry Winter, Kerry’s sister-in-law, Julia Winter, and two others. Having lost at trial, Kerry and his follow plaintiffs sought to appeal. Before the appeal could be heard, Julia and one of the other plaintiffs brought a motion to deal with certain procedural issues, including:

1. an order appointing the Public Guardian and Trustee as litigation guardian for Kerry;
2. if necessary, an order requiring Kerry to attend for an examination by a health practitioner of his mental capacity; and
3. an order that the evidence filed on the motion concerning Kerry’s mental health be treated as confidential, sealed, and not form part of the public record. Julia filed two affidavits in support of the motion.

At the first hearing of the motion, Kerry agreed to attend a capacity assessment. The balance of the motion was adjourned and the Court directed that Julia’s two affidavits be temporarily sealed.

When the sealing order motion was returned, Toronto Star Newspapers Ltd. was given leave to intervene. The Toronto Star was represented at the hearing by Kevin Donovan, a senior investigative journalist. By this time, the moving parties had also narrowed their requested relief: rather than sealing Julia’s two affidavits in their entirety, the moving parties sought to redact from public view only the personal information about Kerry’s mental health (i.e. the judge would receive unredacted versions of Julia’s affidavits, but the versions of the affidavits available to the public would be redacted).

As noted by the Court, the test for granting a sealing or confidentiality order was established in Sierra Club v Canada (Minister of Finance):

1. (i) is the order necessary to prevent serious risk to an important interest? (the “necessity” test); and
2. (ii) do the benefits of the sealing order outweigh the harm, including the public’s interest in open and accessible court proceedings? (the “proportionality” test).

With regards to the first branch of the test, the moving parties argued that there is a public interest in parties being able to bring forward information about mental health difficulties without concern that it will be broadcast in the media. In response, the Toronto Star filed a number of media reports in which Kerry had been open about his personal struggles. The Toronto Star pointied out that privacy concerns are moot when an individual chooses to make public the information now being sought to keep private.

The Court held that: “a motion to appoint a litigation guardian affects both the personal interests of the individual whose ability to make decisions in a proceeding are affected, and the administration of justice.” The Court further held that the issue to be determined in the motion for a litigation guardian is whether the person has current capacity to participate in the appeal and to instruct counsel. The most salient evidence will be the capacity assessment Kerry agreed to undergo. As a result, the Court held that Julia’s discussion in her affidavits of Kerry’s medical history and past diagnoses were irrelevant and should be redacted from all copies of the affidavits. The Court further held that this was a reasonable alternative to a confidentiality order.

However, the Court held that references in Julia’s affidavits to Kerry’s current mental state were relevant. While this observational evidence, put forward by a close family member, was sensitive, it did not raise specific confidentiality and privacy concerns such as those arising from medical diagnoses or communications with a medical practitioners. Also, Kerry had already demonstrated his willingness to discuss these matters publically. As a result, the Court held that the moving parties had not shown “a real and substantial risk” to Kerry’s privacy interests, or to the broader public interest, which was necessary to justify a sealing order.

The Court left to be decided at a later time whether Kerry’s capacity assessment, once completed, would form part of public record.

This decision provides guidance for litigators when deciding not only what evidence to put forward in guardianship matters, but also what evidence can be held private. The decision also ensures that the general public will continue to get their Apotex trial updates from the Toronto Star.