EVAN ISAAC ALEXANDER, an infant by his Guardian ad Litem , CINDY ANNICK HUMPHRIES Plaintiff And: GENE FRANCIS THOMAS Defendant, 2020 NLSC 145

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Alexander v. Thomas , 2020 NLSC 145 Date : November 25, 2020 Docket : 201101G2989 Between: EVAN ISAAC ALEXANDER, an infant by his Guardian ad Litem , CINDY ANNICK HUMPHRIES Plaintiff And: GENE FRANCIS THOMAS Defendant Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: November 19, 2020

Summary: The defendant in a medical malpractice case involving an infant plaintiff sought an order sealing all documents filed respecting the settlement approval application. The reasons for seeking the sealing order were: first, to protect the integrity of the settlement agreement reached between the parties as to non-disclosure and confidentiality; and second, to allow the parties to file materials respecting the application for approval of the infant settlement in a candid and frank manner, without concern for the contents of the Court file being a matter of public record. The application was dismissed.

Reasons based upon the confidential terms of the settlement and that the public disclosure of the Court file will somehow impede the application for an infant settlement do not identify a serious risk to an important public interest such as to warrant an abrogation of the open-court principle.

Appearances: F. Geoffrey Aylward, Q.C. Appearing on behalf of the Plaintiff Shane R. Belbin Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Dickson v. Kellett , 2018 ONSC 4920 ; Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 ; Rops (Litigation guardian of) v. Intact Insurance Co. , 2013 ONSC 7366 ; R. v. Mentuck , 2001 SCC 76 ; H. (M.E.) v. Williams , 2012 ONCA 35 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Stack, J. : [ 1 ] The plaintiff commenced an action claiming damages against the defendant doctor arising out of the delivery of the plaintiff in August of 2014. [ 2 ] In June of this year, following a lengthy private mediation, the parties compromised the claim without an admission by the defendant of liability and subject to a condition of confidentiality. Because the plaintiff is a minor, however, pursuant to Rule 8.06 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch.

D , the settlement is subject to Court approval. [ 3 ] The defendant sought an order sealing all documents filed respecting the settlement approval application. The basis for seeking the sealing order were: first, to protect the integrity of the settlement agreement reached between the parties as to non-disclosure and confidentiality; and second, to allow the parties to file materials respecting the application for approval of the infant settlement in a candid and frank manner, without concern for the contents of the Court file being a matter of public record.

In particular, counsel for the defendant submitted that at the very least the amount of the settlement should be redacted in order to generally encourage settlements. [ 4 ] The sealing order was not sought for protection of the interests of the minor child or to preserve solicitor-client or settlement privilege. Counsel for the defendant cited no authority for the sealing order requested and relied upon the inherent jurisdiction of the Court. I am not aware of any decisions from this jurisdiction on the issue. [ 5 ] In Dickson v.

Kellett , 2018 ONSC 4920 , Corthorn J. of the Ontario Superior Court gave written reasons for denying a sealing order in a case involving a minor who was involved in a motor vehicle accident. Although the reasons for seeking a sealing order in that case differ from those in this case, the decision provides an instructive examination of the matters at issue. In particular, Corthorn J. applies the test for granting a sealing order in Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 , at paragraph 53 : 53 … (

a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (

b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. [ 6 ] In Rops (Litigation guardian of) v. Intact Insurance Co. , 2013 ONSC 7366 , in support of a request for a sealing order, counsel for the moving party also submitted that the materials were confidential in nature and should not form part of the public record.

The settlement for which approval was sought was of an infant plaintiff’s claim for accident benefits; the tort litigation was continuing. Leitch J. highlighted that the onus is on the moving party to satisfy the court that the contents of the file should

be sealed from public view. At paragraph 37, she applied the two-part test for a sealing order established in R. v. Mentuck , 2001 SCC 76 , that a sealing order should only be made where, “it is necessary to prevent a serious risk to the proper administration of justice and where the salutary effects of the publication ban or sealing order outweigh the deleterious effects on the rights and interests of the parties and the public”.

The request for a sealing order was denied because there was “no basis put forward in the application materials that would justify the sealing order requested” (paragraph 39). [ 7 ] The Ontario Court of Appeal in H. (M.E.) v. Williams , 2012 ONCA 35 , held that sealing orders are extraordinary.

At paragraph 31, the court said: (ii) The Necessity Inquiry Comes First 31 The necessity branch focuses exclusively on the existence of a serious risk to a public interest that can only be addressed by some form of non-publication or sealing order….Unless a serious risk to a public interest is established, the court does not proceed to the second branch of the inquiry where competing interests must be balanced. [ 8 ] Reasons based upon the confidential terms of the settlement and that the public disclosure of the Court file will somehow impede the application for an infant settlement do not identify a serious risk to an important public interest.

The public interest in court supervision of settlements involving minors includes disclosure of the amount of the settlement. No evidence was adduced to show that disclosure of the settlement terms would have a chilling effect on future settlement negotiations. [ 9 ] The contractual non-disclosure and confidentiality provisions of the settlement agreement apply as between the parties and cannot impose upon the Court an obligation to seal information that would otherwise be made public.

Reference by analogy to the Family Court is not persuasive; codified rules there address access to court records in the unique circumstances of family proceedings.

Furthermore, in this case, the application to approve the infant settlement has already been made and is scheduled to be heard immediately following this application; as a result, it cannot be said that the failure to obtain a sealing order would impair the ability of the parties to file the necessary information for the Court to consider the application for the infant settlement. [ 10 ] Although the Court plays a supervisory role in infant settlements, it is not sufficient to say, in effect, “trust us, what we do in secret is in the best interests of the child”.

It is foundational that the public have access to the records of the Court so as to provide the oversight that the open-court principle protects. [ 11 ] Much of the business of the Court involves matters of a private and sensitive nature. These considerations are not sufficient to warrant abrogating the public’s access to the Court and its records, except in exceptional cases, including where there are allegations of sexual abuse and other similar circumstances.

Even then, most often, the testimony and evidence are public and the privacy interests are preserved through publication bans; in camera hearings and sealing orders are rare. [ 12 ] In

summary, the defendant has not demonstrated that a sealing order is necessary in these circumstances. Even if necessity had been established, however, the salutary effects of a sealing order would not outweigh its deleterious effects, especially the public interest in open and accessible court proceedings. [ 13 ] I note that counsel for the plaintiff has consented to this application. That does not in any way diminish the obligation of the Court to balance the interests at stake and to deny a sealing order where it would not be in the best interests of justice to do so.

Nevertheless, notwithstanding that the defendant has not been successful in its application, there will be no order as to costs. _____________________________ Robert P. Stack Justice