2010 ONSC 2501, 2010 ONSC 2501

CITATION : FRALEIGH v. GREAT-WEST LIFE et al., 2010 ONSC 2501 COURT FILE NO.: 09-12345 DATE: 20100505 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) JOANNE E. FRALEIGH Plaintiff ) ) ) Ms. Helen Pelton, counsel for the Plaintiff - and - ) ) THE GREAT-WEST LIFE ASSURANCE COMPANY and CATHERINE LAKE KILLEN ) ) ) Mr. Scott McTaggart, counsel for the Defendant Defendant -and- GREG FRALEIGH Moving Party -and- TORONTO STAR NEWSPAPERS LTD. ) ) ) ) ) ) ) ) ) ) Mr. Peter Downward, counsel for the Moving Party Mr.

Ryder Gilliland, counsel for the Responding Party Responding Party to the Motion ) ) ) ) ) HEARD: March 30, 2010 AMENDED PUBLICATION BAN WITH RESPECT TO ANY DETAILS OF THE HEALTH CONDITION OR HEALTH RECORDS OF GREG FRALEIGH

WHITTEN J. I INTRODUCTION [1] Joanne Fraleigh, the divorced wife of Greg Fraleigh has commenced this action founded on negligence and breach of contract ofGreat West Life Assurance Company (Great West) and Catherine Lake Killen (Killen). Great West was the former provider of grouplife insurance to a family business operated by her ex-husband, Greg Fraleigh. It is alleged that Great West allowed Killen to adjust thecosts of treatment submitted by Greg Fraleigh.

Furthermore, the plaintiff alleges that Killen capitalized upon the knowledge she acquiredas to the nature of Mr.Fraleigh’s health, and became romantically involved with him. Ms. Fraleigh has alleged that her former husbandsuffers from a particular addiction. That latter allegation has been vigorously denied by Mr. Fraleigh who although not a party has beengranted intervener status. The Toronto Star Newspapers have also been granted intervener status as the paper seeks to publish thespecifics of what Ms.

Fraleigh claims and the treatment her husband received. [2] There have been a series of orders that have effectively banned publication of the information related to the personal health andtreatment thereof of Mr. Fraleigh referred to in paragraphs 8, 9, 15, 16, 23, 24, 25, 33(

f) and 34 (

b) of the Statement of Claim. [3] Mr. Fraleigh seeks to maintain the ban. The Toronto Star challenges the necessity for such bans and is joined by Ms. Fraleighin that regard. Furthermore, he seeks an order prohibiting the publication of information in which would disclose or would tend todisclose his personal health condition or personal health care received by him in the treatment of that condition. II APPLICABLE LAW Open Courts and Freedom of the Press [4] It is axiomatic that the courts are “open” to the public. Scott v. Scott

(1913) AC 417 (H.L.) is a seminal decision in which LordAtkinson stated: “The hearing of a case in public may be and often is no doubt painful, humiliating or deterrent both toparties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injurepublic morals, but all this is tolerated and endured because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the bestmeans for winning of public confidence and respect.” [5] In the various judgments in Scott v.

Scott, there was reference to three exceptions to this axiom; namely, for cases concerning:(1) wards of the state, (2) lunatics and (3) secret manufacturing processes or trade secrets.

Lord Shaw of Dunfermline stated that thethird exception was premised on the fact; “that the rights of the subject were bound up in the preservation of the secret.” (at p.483) To dootherwise would be to effectively vacate that which a party sought to protect. [6] Therefore, there appears to be an early recognition that there are some (witnesses or parties) who require particular protectionby virtue of their vulnerability and there are some commercial situations in which publication would have an extremely deleterious effect. [7] No doubt because trial proceedings and even the pleadings leading up to the trial have the potential to cast a person in anunfavourable light, attempts have been made by parties and witnesses alike to obtain a “ban” against publication.

The courts haveconsistently held that mere embarrassment is not sufficient to discharge the greater principle namely; the openness of the courts to ensurepublic scrutiny and accountability as to the quality of the justice administered. [8] There are numerous examples of such attempts in the criminal context. For example, “found ins”, an archaic term referring tomembers of the public, literally found in a common bawdy house embarrassed or fearful of the impact upon their reputation in thecommunity, have not benefitted from a publication ban. Re: F.P. Publications (Western) Ltd. v.

The Queen (1979) (MB CA), 108 D.L.R. (3d) 153 (Man.C.A.). Such potential effects are considered standard fare in the adversary system. [9] The Canadian Charter of Rights and Freedoms in 1982 established as a fundamental freedom in

section 2(b): “freedom ofthought, belief, opinion and expression including freedom of the press and other media of communication.” Inevitably, the freedom ofthe press would come in conflict with an individual’s right to privacy. Publication Bans and Privacy Rights [10] In Edmonton Journal v. Alberta (Attorney General) (1989) (SCC), [1989] 2 S.C.R. 1326, the newspaper movedto set aside various sections of the Alberta Judicature Act which effectively prohibited the publication of matrimonial proceedings.

Justice Cory concluded that the implied sections did not interfere, as little as possible (minimally) with the Charter right. However, HisHonour at page 33 did recognize that there may be situations in which courts take steps to prevent the publication of portions ofdocuments.

[11] Justice Wilson spoke of the individual’s right to privacy as not being an unlimited right, but rather having to be balanced againstsocietal needs. [12] Justice Wilson cautioned jurists (at para. 69) to not allow compassion for that particular group of people who are of interest to thepublic because they are who they are or what they have allegedly done, to undermine the principle of the openness of the courts which isfundamentally sound. [13] Whilst noting that matrimonial litigation may well have allegations of cruel, immoral, abhorrent behaviour which may impactupon the children of the warring couple, Justice Wilson stated; “I think that legislation seeking to address that concern should do sospecifically or through the grant of judicial discretion and should be strictly confined to that narrow range of cases.” [14] Justice LaForest, dissenting in part, referring to the decision of the court in R. v.

Dyment (1988) (SCC), 2 S.C.R.417, observed that the right to privacy extends to informational privacy. His Honour remarked at para.93: “It should come as no great revelation that the divulgation of personal information about an individual by themass media can do invaluable harm to that individual and his or her family.” R. v. Dyment (1988) (SCC), 2 S.C.R. 417 [15] In R. v. O’Connor (1995) (SCC), 4 SCR 411, the Supreme Court crafted a process by which an accused couldapply for production of third party records, in particular, of psychiatric, mental health records of complainant(s).

Justice L’Heureux-Dubé writing for three members of the court who dissented in part as to the nature of the third party production process, observed howthe court had in past expressed sympathy with the suggestion that a right to privacy was inherent in

Section 7 of the Charter of Rights andFreedoms. Justice Wilson in R. v. Morgentaler (SCC), [1988] 1 S.C.R. 30, had noted how the right to individual libertywas inextricably entwined with the concept of human dignity. Justice Wilson had opined that a purposive

interpretation of the Charterrequires that the right to liberty in

Section 7 be read to guarantee to every individual a degree of personal autonomy over importantdecisions intimately affecting their personal lives. “Security of the person” is sufficiently broad to include protection for thepsychological integrity of the individual. (ref. para. 111) [16] Justice Lamer in Mills v. The Queen (SCC), [1986] 1 S.C.R. 863 “had recognized…(at pge. 920) that the right tosecurity of the person encompasses the right to be protected against psychological trauma” (ref. to in para.111 of R. v.

O’Connor). [17] Justice L’Heureux-Dubé was concerned with the possible extended victimization of complainants in a sexual assault trial as aresult of having to disclose intensely personal records in a court room, necessitated by the very person alleged to have violated them.

HerHonour wrote that surely: “(r)espect for individual privacy is an essential component of what it means to be free.” (para.113) However,privacy can never be an absolute right, “It must be balanced against legitimate societal needs.” Therapeutic health records were in HerHonour’s view, within the rubric of privacy. [18] Given that the nature of privacy is such that once it is invaded it cannot be regained, it is important that it be respected before it isimparted upon.

It is for that reason that Justice L’Heureux-Dubé endorsed a system of judicial pre-authorization. (para.119) [19] The Personal Health Information Protection Act, 2004, R.S.O. was enacted for amongst other things to; “(

a) establish rules forthe collection, use and disclosure of personal health information about individuals that protect the confidentiality of that information andthe privacy of individuals with respect to that information, while facilitating the effective provision of health care.” A similar respect forthe sensitivity of such documentation is reflected in s.4.3.4 of the Personal Information Protection and Electronic Documents Act S.C.2000. [20] How then is the openness of the courts to public scrutiny, facilitated by press coverage, to interact with privacy interests?

Publication bans and confidentiality orders are a means by which privacy is protected, but as has been seen, the historic concern has beenwith protecting the vulnerable and interests (usually commercial) which would be effectively obliterated by publication. [21] The openness of the court is stipulated in The Courts of Justice Act, R.S.O. 1990 C.43

Section 135: “

(1) Subject to subsection (2) and the rules of court, all court hearings shall be open to the public.

(2) The court may order the public to be excluded from a hearing where the possibility of serious harmor injustice to any person justifies a departure from the general principle that court hearings should be open to the public.” Section 137(2) provides: “A court may order that any document filed in civil proceedings before it be treated as confidential,sealed and not form part of the public record.” Normally, a Statement of Claim (as part of the pleadings) is part of the public record. [22] The Supreme Court has through Dagenais v. Canadian Broadcasting Corp. (SCC), [1994] S.C.J. No. 104, R. v.

Mentuck 2001 SCC 76 , [2001] 3 S.C.R. 442, and Sierra Club of Canada v. Canada (Minister of Finance) (2002) 2002 SCC 41, S.C.J. No. 42 evolved an approach to the possibility of publication bans and confidentiality orders. [23] Several principles emerge; “The party seeking to justify the limitation of a right (in the case of a publication ban, the partyseeking to limit freedom of expression) bears the burden of justifying the limitation.” ) The justification must demonstrate that there is noeffective less intrusive alternative measure to ensure a particular objective.

There must be proportionality between the salutary anddeleterious effects of the ban. (ref. para. 98 of Dagenais) This analysis is inevitably contextual. A ban will not be available to prevent

remote or speculative dangers. [24] The jurist who hears such an application must consider all options. He or she must weigh the objective of the ban versus theprobable effects upon freedom of expression. [25] In R. v. Mentuck (2001) 2001 SCC 76 , 3 S.C.R. 442 Justice Iacobucci wrote the decision of the court.

His Honourobserved that the common law rule can be broader than the specific application in Dagenais; “The (common law) rule can accommodateorders that must occasionally be made in the interests of the administration of justice which encompasses more than fair trial right.”(para.31) Justice Iacobucci reformulated the original test in Dagenais to provide that: “A publication ban should only be ordered when: (

a) such an order is necessary in order to prevent a seriousrisk to the proper administration of justice because reasonable alternatives will not prevent the risk, and (

b) the salutaryeffects of the publication ban outweigh the deleterious effect upon the rights and interests of the parties andthe public, including the effects on the rights to free expression, the right of the accused to a fair and public trial, and theefficacy of the administration of justice.” (at para. 32) [26] In Sierra Club of Canada v. Canada (Minister of Finance) 2002 SCC 41 , [2002] 2 S.C.R. 522, the Sierra Club, anenvironmental organization, sought details of environmental assessments conducted in China, as a precursor to the sale of CanduReactors to China.

Because the sale was significantly aided by a guaranteed loan, the Canadian Environmental Assessment Act, S.C.(1992) applied and environmental assessments were required. The Chinese government was prepared to provide the assessments as longas they were subject to a confidentiality order. Namely, the documents were only available to the parties and the court. There would beno restriction on public access to the proceedings. This situation is in essence what Mr. Fraleigh seeks in the matter at hand. [27] Justice Iacobucci again wrote for the full court.

In commenting on the reformation of the Dagenais test contained in R. v.Mentuck, he stated at para.46: “The court emphasized that under the first branch of the test, three important elements were scrutinizedunder the “necessity” branch. First the risk in question must be a serious risk grounded in the evidence. Second,the phrase “proper administration of justice” must be carefully interpreted so as not to allow the concealment of an excessive amount of information.

Third, the test requires the judge ordering the ban to consider notonly whether reasonable alternatives are available, but also to restrict the bans as far as possible without sacrificing the risk.” [28] Justice Iacobucci believed that R. v. Mentuck illustrates the flexibility of the Dagenais approach.

It was designed to ensure thatany denial to public access to the courts was in accordance with Charter principles, and as such was equally applicable to a situation inwhich the exercise of judicial discretion was sought to exclude confidential information from a public proceeding. [29] His Honour stated at paragraph 53; “A confidentiality order under Rule 151 (the equivalent of s.137(2) in the Federal Court Rules)should be only granted when, (

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 measure will not prevent the risk, and (

b) the salutary effect of the confidentiality order, including the effects on the right ofcivil litigants to a fair trial outweigh its deleterious effects, including the effects on the right to free expression, whichin this context includes the public interest in open and accessible court proceedings.” [30] Essentially, the test requires a consideration of; (

a) the important interests involved, (

b) the serious risk, (

c) the salutary effects ofprotection, and (

d) are any deleterious effects outweighed. [31] In commenting upon the first branch of this test, Justice Iacobucci stipulated that the “important (commercial) interest” cannot bemerely specific to the party requesting it, “the interest must be one which can be expressed in terms of a public interest in confidentiality”(underlining mine). [32] In expanding upon this distinction, His Honour referred by way of analogy to protective orders in patent litigation.

Theapplication for such an order must “demonstrate that the information in question has been treated at all relevant times as confidential.” Justice Iacobucci expanded upon this to require, “that the information in question must be of a “confidential nature”, in that, it has been“accumulated with a reasonable expectation of it being kept confidential by having the court room doors closed” (at para. 60) [33] In his analysis with respect to the deleterious effects of a confidentiality order, Justice Iacobucci described the underlining corevalues of freedom of expression as; “(1) seeking the truth and the common good (2) promoting self fulfillment of individuals by allowing them to develop thoughts and ideas as they seefit, and (3) ensuring the political process is open to all persons.” (para.74) [34] In the matter at hand, none of these core values are impinged upon.

What is at stake is simply the reporting of accusationsbetween parties. The only elevated principle on the line is that of the openness of the courts. Deemed Undertaking Rule

[35] It is necessary to refer to this rule as Mr. Fraleigh has raised the spectre and Great West had pleaded that the allegations in theStatement of Claim with respect to the causes of the breakdown of his marriage to the plaintiff and the economic, emotionalconsequences, had been raised, litigated and settled in the proceedings before the Family Court Branch of the Superior Court.

An Orderin that proceeding obtained on consent before Justice Lafreniere, December 12, 2008, contained the provision that, “the within court fileshall be treated as confidential, sealed and shall not form part of the public record.” [36] Rule 30.1.01(3) enshrines the common law rule with respect to deemed undertaking. [37] Rule 30.1.01 (3) provides:

(3) All parties and their counsel are deemed to undertake not to use evidence or information towhich the Rule applies for any purpose other than those of the proceedings in which the evidence was obtained. [38] The Court of Appeal in Goodman v. Rossi (1995) (ON CA), 24 O.R. (3d) 359 at page 369 described therationale for the rule: [T]he principle is based on recognition of the general right of privacy which a person has with respect tohis or her documents. The discovery process represents an intrusion on this right under the compulsory processes of thecourt.

The necessary corollary is that this intrusion should not be allowed for any purpose other than that of securing justice in the proceeding in which the discovery takes place. It is in general wrong that one who is compelled by law to produce documents for the purpose ofparticular proceedings should be in peril of having those documents used by the other party for some purposeother than the purpose of the particular legal proceedings and, in particular, that they should be made available to third parties who might use them to the detriment of the party who has produced them on discovery.

A further rationale is the promotion of full discovery, as without such an undertaking the fear of collateraluse may in some cases operate as a disincentive to proper discovery. The interest of the proper administration of justice, require that there should be no disincentive to full and frank discovery. [39] Master Dash in Moore v. Bertuzzi (ON SC), [2007] O.J.

No.5113 referred to the above and noted that theDivisional Court has recently noted that the deemed undertaking rule involves a balancing between different public interests: “The common law rule seeks to balance the public interest in discovering the truth so that justice could bedone between the parties, against the public interest in preserving privacy and protecting confidential information.” [40] The Divisional Court commented on the interplay between the press and the deemed undertaking by reference to the followingpassage by Lord Denning in Riddick v.

Thames Board Mills Ltd.: “The public interest in privacy and confidence demands that this compulsion should not be pressedfurther than the course of justice requires. The courts should, therefore, not allow the other party, or anyone else, touse the documents for an ulterior or alien purpose. …In order to encourage openness and fairness, the public interest requires that documents disclosed ondiscovery are not to be made use of except for the purpose of the action in which they are disclosed.

Theyare not to be made a ground for comments in the newspapers or for bringing a libel action, or for any other alien purpose.” [emphasis added] [41] Master Dash concluded: “It is thus clear that the courts have found a public interest in the protection of evidence compelled by thediscovery process including comments in the press. This of course will have to be balanced against the right of thepublic, including the press, to open courts.” (Ibid, para.12) III FACTUAL BACKGROUND [42] As mentioned above the Fraleigh’s are divorced spouses.

The consent Order of Justice Lafreniere dated December 12, 2008reveals to some extent how extensive the litigation between the two spouses was. There were two young children who now would beapproximately 9 and 10 years of age. A therapist was retained on behalf of the children and was involved in the parental sharing. Corporate and personal financial disclosure was mandated. Forensic accountants were retained by both. “Questioning” the family lawequivalent of examining a party or discovery was provided for.

It can be inferred that this litigation would be the opportunity to addressissues of equalization of matrimonial assets and spousal and child support issues. As also mentioned, the parties agreed that the courtfile would be treated as confidential, sealed, not part of the public record. [43] Settlement of all issues was achieved in November 2009. Unbeknownst to Mr. Fraleigh the Statement of Claim was issued inJune of 2009 by his ex-wife.

It was served about three weeks after the matrimonial issues were settled. [44] The Statement of Claim against Great West Life and Catherine Lake Killen (Killen) alleges a particular diagnosis of Mr. Fraleighfor which he apparently had sought treatment cost reimbursement from Great West, the then provider of group health benefits for hiscompany. [45] Joanne Fraleigh claims that Killen was the company service representative who adjusted these claims.

[ 46 ] The plaintiff in essence alleges that Killen took advantage of the knowledge of the health issues of Mr. Fraleigh to establish an intimate relationship with Mr. Fraleigh causing the demise of the Fraleigh marriage and consequential emotional damage to Joanne Fraleigh, the plaintiff. The latter suffered alleged damages such that her future employability and competitive position was affected. It was also alleged that Mr. Fraleigh had dissipated matrimonial assets as a consequence of his demonstrating his generosity and feelings for Killen.

The claim is based on an assertion of negligence and breach of contract on the part of Great West in allowing their employee, Killen, to act and benefit in the fashion alleged. [ 47 ] Great West and Killen have, of course, denied the allegations and, in fact, counsel for Great West, even before the issuing of a Statement of Defence, wrote stipulating that Killen had absolutely nothing to do with any group health insurance claims submitted by Mr. Fraleigh. [ 48 ] Mr. Fraleigh is not a party to the proceedings. He is not at any level a “volunteer” in the proceedings as Justice Kitely referred to in Re: Phelan

(1999) Carswell Ont. 2039 . However, his personal emotional health is front row and center given the specific allegations contained in paragraphs 8, 9, 15, 16, 23, 24, 25, 33(

f) and 34(

b) of the Statement of Claim. It is his particular alleged […] health history which is key to the factual foundation of the claim. [ 49 ] On January 7, 2010 Justice Steinberg extended the confidentiality sealing order of Justice Lafreniere to also apply to the within civil claim. On February 25, 2010, Justice Milanetti on consent set aside the order of Justice Steinberg and issued a non-publication Order with respect to the impugned paragraphs of the Statement of Claim until the decision of this court. [ 50 ] Mr.

Fraleigh deposes that he has never had nor has he ever submitted a claim for treatment thereof or diagnosed as the plaintiff alleges . He did suffer […] Ms. Mahoney has opined in a letter attached to his affidavit, Exhibit “H”, dated March 1, 2010 that Mr. Fraleigh is experiencing severe stress […] about the potential publication and disclosure of his private health information. Mr. Fraleigh appears to have no capacity to tolerate these additional stresses.” [ 51 ] Ms. Mahoney proceeded to express the concerns that Mr.

Fraleigh cannot avoid (ie: continue to be subjected to) these stressors, “[…] . ” [ 52 ] In paragraph 31 of his affidavit, Mr. Fraleigh deposes that he believes if the information in the impugned paragraphs is made public, his economic interests and that of his company will be put at risk given that his relationship with his clients involves a significant degree of trust and confidence in his ability to manage the fiscal interests of his clients. He stresses that he works in a very competitive milieu. [ 53 ] Mr.

Fraleigh also deposes that the involvement of the plaintiff in his previous treatment was with the understanding that there would be complete confidentiality with respect to the nature of his ailments and the treatment in question. He describes Joanne Fraleigh’s action before the court and the assertions as malicious.

Her joining the Toronto Star in resisting any confidentiality or publication ban, no doubt would not detract from his impression in that regard. [ 54 ] Not surprisingly, Great West Life pleads in the Statement of Defence, in addition to, the denial of the involvement of Killen and negligence and breach of contract, this action is a duplication of what was litigated by the Fraleighs in the Family Court Branch. Great West Life described the Statement of Claim as an abuse of process. [ 55 ] Mr. Fraleigh also deposes about what can be characterized as an interest in the press with respect to matters salacious.

These observations obviously could be made, but for the purposes of the court’s decision they are generalizations which do not detract from the freedom of press, in general, the power to publish, disseminate that which is before the courts. IV ANALYSIS [ 56 ] That which is sought to be subject to a confidentiality order is a portion of the Statement of Claim herein. The base allegation that an insurance adjuster somehow capitalized on health information of a group benefit claimant would still be publishable, as would be the fact of the development of a relationship between the alleged adjuster and Mr. Fraleigh.

That, which is sought to be protected by a confidentiality order, is simply the alleged nature of the health and treatment of Mr. Fraleigh. To that extent, the confidentiality order sought is about as minimally intrusive upon the freedom of the press as can be in the circumstances. [ 57 ] The publication ban with respect to information which would disclose the personal health condition or personal health care received by Mr.

Fraleigh or the treatment of that condition would be necessary in order to prevent the circumventing of a confidentiality order by reporting the same information from a source other than the Statement of Claim. [ 58 ] Mr. Fraleigh’s risk goes beyond that of being merely embarrassed. His deposition is unchallenged. Ms. Mahoney, the therapist, may indeed have a website in which she offers for sale certain products, but her conclusions and concerns remain unchallenged.

These concerns could have been better presented in an affidavit, but there is potential for further breaches of the confidentiality which exists between herself and Mr. Fraleigh if the therapist herself becomes subject to cross-examination. Mr. Fraleigh has sworn his affidavit. His understanding of his own fragility is influenced by what his therapist tells him.

Rule 39.01(4) provides “an affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.” [ 59 ] In any event, the fragility of Mr. Fraleigh is well established by his own affidavit assertions of; (1) […], (2) […], (3) […], and (4) […]. There is a real and substantial risk that he, like the complainants in R. v. O’Connor would be re-victimized if there was no protection of his private health records. [ 60 ] He is not a “volunteer” to this litigation.

His […] health history is being utilized by another, the plaintiff. This potential for emotional injury is above and beyond the breach of the privacy interest Mr. Fraleigh has in such information and records. This

information is certainly encompassed within that in which citizens generally would anticipate a privacy interest. [ 61 ] His assertions of a risk to his financial and business interests appear to be a logical possibility. One recognizes that it is virtually impossible to test that proposition. However, the risk to these interests is speculative. Such economic risks are not of the same calibre as that of the risk to Mr. Fraleigh’s emotional well-being. [ 62 ] The interest at stake here is not confined to that of Mr. Fraleigh.

Surely, the public has an interest in that parties who willingly agree to a sealing order or confidential order with respect to a court file should be able to rely on that consensus. To the extent that the plaintiff so agreed, until that possibility is tested a party should not be allowed to circumvent that which was agreed to by reproducing the substantive assertions in a non-family civil claim. To allow otherwise, would be to allow a party to dishonour their agreement. [ 63 ] Similar observations can be made with respect to the deemed undertaking rule.

Until that possibility is vetted by the court, a publication or disclosure would potentially undermine the rationale for the rule. [ 64 ] As mentioned, in the context of this litigation and considering the interests and issues touched upon, a confidentiality order pursuant to s.137(2) with respect to a portion of the Statement of Claim, the actual health and treatment of Mr. Fraleigh appears a reasonable alternative. This is especially so given that the actual base allegation of adjuster using claim information to relate to spouse of plaintiff is still open to the public.

The actual nature of the health issues, are really secondary to this base allegation. [ 65 ] The immediate salutary effect of the confidentiality order is to limit the impact of these allegations on the emotional health of Mr. Fraleigh. Obviously, he will not be able to fully escape as the litigation continues, but he at least has some comfort that until a trial judge decides otherwise, probably with reference to the principles enunciated in R. v.

O’Connor , his privacy interests are only subject to examination by the parties and the court. [ 66 ] With respect to the public interest in the open courts, as mentioned the base allegation referred to above can be published without the actual health details. [ 67 ] The public is not at this juncture precluded from access to the record in the trial proper. In a way, public scrutiny via the press is simply delayed until the admissibility of such assertions in the impugned paragraphs is ruled upon in the context of such principles as the deemed undertaking rule and possible breach of agreed upon confidentiality.

V CONCLUSION [ 68 ] Therefore, for all of the above, the confidentiality order with respect to paragraphs 8, 9, 15, 16, 23, 24, 25, 33(

f) and 36(

b) of the Statement of Claim pertaining to the personal health of Mr. Fraleigh is granted and a publication ban is also granted of information, which would disclose the personal health condition or personal health care received by Mr. Fraleigh in treatment of that condition. This includes the information in that regard set out in paragraphs 50, 51 and 59 of these reasons. [ 69 ] If counsel cannot agree with respect to liability for and quantum of costs on the part of the interveners, Toronto Star Newspapers and Mr.

Fraleigh and the plaintiff, Joanne Fraleigh (Great West had no real role in the hearing of this motion), submissions are to be exchanged and filed with the court within 45 days of the release of this judgment. ___________________________ Whitten J. Released: May 05, 2010