On January 24, 2012, in M.E.H. v. Williams (Williams), the Ontario Court of Appeal reaffirmed the test set out by the Supreme Court of Canada in R. v. Mentuck for obtaining a publication ban, and the principles stated are expected to apply generally to sealing orders and any other related order.

The Court found that no sealing orders or publication bans will be accepted without evidence to support a “serious risk to the proper administration of justice”, with a focus on expert medical opinion to reliably set out the physical and mental harm that would be necessary to usurp the constitutionally-based open court principle. Such harm must go beyond the emotional distress and embarrassment, and must consist of “serious debilitating physical or emotional harm”.

The Court further elaborated that one must first establish an existing public interest that can only be properly addressed by a publication ban or sealing order. A court is not to consider what harm might be done by granting the order, but is to consider whether the party applying for the order has shown that the proper administration of justice will fail if the order is not granted, and evidence of to justify the necessity of protecting that public interest must be “convincing” and “subject to close scrutiny and meet rigorous standards”.

In short, focus must be on the public interest that is threatened by this court proceeding that would necessitate a publication ban or sealing order, and not a balancing of harm and benefit to the individual seeking such an order.

Throughout the decision, the court references publication bans and sealing orders together when setting out the test to be applied. Though frequently cited in the decision, the previous Supreme Court of Canada decision  in Sierra Club of Canada v. Canada (Minister of Finance) set out a slightly modified test for imposing a sealing order – namely, the interest to be protected must be an “important interest, including a commercial interest” rather than the “proper administration of justice” requirement for publication bans. The court in this case appears to have conflated the two tests, and is utilizing the Mentuck test for both publication bans and sealing orders.

Equally as interesting is the Court’s decision to uphold the publication ban for a limited set of information, namely the respondent’s financial information, date of birth, and domestic contract. Since these components of the publication ban were not appealed, the Court allowed the publication ban to continue for that information. It may be necessary for future courts to elaborate on this test in dispelling the apparent hypocrisy to uphold a publication ban for such banal and harmless information as a date of birth simply because it was unopposed, when it was expressly stated that consent is not relevant to the importance of protecting the public’s right to an open proceeding.

Regardless, publication bans and sealing orders are still possible to obtain, particularly in protecting small portions of a court record. However, doing so will require unique circumstances, strong evidence, and a convincing argument to obtain any sealing orders or publication bans in the near future.

For more information, please see the case at: M.E.H. v. Williams, 2012 ONCA 35

Robert Kalanda, B.A., J.D., Student-at-law

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