Sealing the Deal: The Hurdles Faced by Litigants in Obtaining Sealing Orders and Possible Alternatives
It is not unusual for individuals embroiled in legal proceedings to express concerns about the personal and private information divulged in evidence and put into public record during the litigation process. Privacy and security are important to many of us, after all. As a result, litigants may seek sealing orders from the court, attempting to keep access to certain information or documents out of the public record and away from the public’s prying eyes.
Standing in the way of these litigants’ peace of mind are the fundamentals of Canadian law, which recognize the importance of the open court principle: the ability for the public to have uninhibited access to court proceedings. The Supreme Court of Canada in Sherman Estate v. Donovan[1] stated that that court openness is protected by the constitutionally entrenched right of freedom of expression and it influences the proper functioning of Canadian democracy.[2] Clearly, obtaining a sealing order is no small task given the lofty constitutional protections described in Sherman Estate.
Given the seemingly high threshold to be granted a sealing order, what other avenues, if any, can a litigant take to protect their privacy and security interests during litigation? This issue was recently addressed in the Ontario Court of Appeals decision, Muslim Association of Canada v. Canada (Attorney General)[3].
Background:
The appellant, the Muslim Association of Canada, sought a sealing order for evidence submitted by both itself and the respondent, the Attorney General of Canada, in prior appeal proceedings. The materials in question included an affidavit from a CRA official, the CRA’s final audit decision, and affidavits from the appellant’s board members, which attached documents responding to the CRA’s final audit. The appellant argued that public disclosure of this information could seriously harm the dignity and physical safety of its members.
The respondent opposed the appellant’s request, arguing that it conflicted with the principle of open courts and that the appellant’s privacy and safety concerns could be adequately addressed through redactions to the relevant documents.
Legal Analysis and the Court’s Findings
The test for obtaining a sealing order was set out in Sierra Club of Canada v. Canada (Minister of Finance) and further addressed in Sherman Estate. In order to obtain a sealing order, a party must establish that:[4]
- Court openness posses a serious risk to an important public interest;
- The sealing order sought is necessary to prevent the serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and
- As a matter of proportionality, the benefits of the sealing order outweigh its negative effects.
In addition to certain commercial interests, Sherman Estate furtherrecognized that preservation of individual dignity serves as an important public interest and may justify an exception to the open court principle. However, the information must be so sensitive that “its dissemination could be an affront to dignity that the public would not tolerate,” which can include stigmatized medical diagnoses or stigmatized work, amongst other examples.[5]
Ultimately, the Court of Appeal in Muslim Association of Canada, agreed with the respondent’s position. The applicant’s concerns did not rise to a level significant enough for the court to supersede the open court principles as set out in Siera Club and Sherman Estate. The Court of Appeal ordered that redactions be applied to portions of the parties’ evidentiary materials instead of implementing a sealing order.
In its decision, the Court of Appeal stated that when there are serious allegations of government wrongdoing, “it is essential that such allegations be litigated in public, since ‘[w]here government misconduct is alleged, sunlight remains the best of disinfectants.’”[6] Ultimately, the Court agreed that applying redactions to the documents represented a careful and appropriate balancing of the open court principle and the competing public interests at stake in the litigation.
Final Thoughts
So, again, what options do litigants have in preserving their privacy and safety concerns other than sealing orders? The Court of Appeal’s answer, in this case, indicates that litigants can seek orders requiring redactions to sensitive information. Or, perhaps, parties can attempt to collaborate and apply necessary redactions to sensitive documents without the court’s involvement. Whatever approach is taken, parties may wish to consider whether redactions to soon-to-be publicly accessible documents are an effective and cost-efficient method of protecting litigants’ privacy concerns as an alternative to a sealing order. In coming to a decision, parties should consider the unique circumstances of their case in the context of the principles outlined in Sierra Club and Sherman Estate – if a sealing order is unlikely to be granted, redactions serve as a strong alternative.
[1] Sherman Estate v Donovan, 2021 SCC 25 [Sherman Estate].
[2] Ibid at para 30.
[3] Muslim Association of Canada v Canada (Attorney General), 2024 ONCA 663 [Muslim Association of Canada].
[4] Sierra Club of Canada v Canada (Minister of Finance), [2002] SCR 522, at paras 53-57 [Sierra Club].
[5] Sherman Estate at paras 76-77.
[6] Muslim Association of Canada at para 12.