



COURT OF APPEAL FOR ONTARIO

CITATION: Winter v. Sherman Estate, 2018 ONCA 379

DATE: 20180417

DOCKET: M48819 (C64434)

van Rensburg J.A.
    (Motion Judge)

BETWEEN

Kerry
    J.D. Winter
,
Paul T. Barkin

and
    Julia Winter, personal representative of
Dana C. Winter, deceased, and Jeffrey A. Barkin

Plaintiffs (
Appellants
)

Moving Parties

and

The
    Estate of Bernard C. Sherman, Meyer F. Florence,
Apotex Inc. and Joel D. Ulster

Defendants (Respondents)
Responding Parties

Bradley Teplitsky, for the moving parties

Katherine L. Kay, for the responding parties

Kevin Donovan, in person for the intervener Toronto Star
    Newspapers Ltd.

Heard: April 5, 2018

ENDORSEMENT

[1]

The moving parties, who are two of the appellants in
    this appeal, have brought a motion for: (i) an order appointing the Office of
    the Public Guardian and Trustee (the OPGT) as litigation guardian for the
    third appellant, Kerry Winter; (ii) if necessary, an order requiring Mr. Winter
    to attend for a mental examination by a health practitioner; (iii) in the
    alternative, an order removing Bradley Teplitsky as counsel of record for Mr.
    Winter; (iv) an order extending the time to perfect the appeal; and (v) an
    order that the evidence filed on the motion concerning Mr. Winters mental
    health be treated as confidential, sealed, and not form part of the public
    record.

[2]

When the motion was first before this court,
    time for perfection of the appeal was extended, and the appeal has now been perfected.
    Mr. Teplitsky was removed as counsel for Mr. Winter in the appeal. An
    assessment of Mr. Winter was directed with his consent, on terms and conditions
    agreed between the moving parties and the OPGT. The two affidavits of Julia
    Winter in support of the motion dated February 21, 2018 (the February
    Affidavit) and March 11, 2018 (the March Affidavit) were sealed pending
    further order, and the sealing order motion was adjourned to be brought back on
    before me as case management judge on the appeal, on notice to the media.

[3]

On the return date, the moving parties no longer
    requested an order sealing the two subject affidavits in their entirety.
    Rather, they sought to protect the confidentiality of certain information
    contained in the affidavits and Exhibit A to the March Affidavit.
    Mr. Winter and the OPGT did not attend. Mr. Teplitsky advised the court
    that Mr. Winter supported the motion, and that the OPGT was taking no
    position.

[4]

Except as I shall explain, the motion was
    opposed by the respondents and by Toronto Star Newspapers Ltd. (the Toronto
    Star). The Toronto Star was permitted to intervene on the motion, and to be
    represented at the hearing by Kevin Donovan, senior investigative journalist.
    The respondents were provided with redacted versions of the two affidavits,
    which were otherwise sealed pending this decision.

[5]

The moving parties raise two confidentiality
    concerns in respect of the affidavits of Ms. Winter. First, there are passages
    that disclose solicitor-client communications between Mr. Winter and Mr.
    Teplitsky, although solicitor-client privilege has not been waived by Mr.
    Winter. Second, the affidavits disclose personal information about Mr. Winters
    mental health, confided for the purpose of seeking the appointment of a
    litigation guardian. Certain passages in the March Affidavit and its Exhibit A
    also disclose personal information about the health of Jeffrey Barkin, who is
    not a party to the appeal.

[6]

The parties agree that the applicable test was
    articulated by Iacobucci J. in
Sierra Club v. Canada (Minister of
    Finance)
,

2002 SCC 41, [2002] 2 S.C.R. 522. A sealing or confidentiality order
    should only be granted when (a) such an order is necessary in order to prevent
    a serious risk to an important interest, in the context of litigation, because
    reasonable alternative measures will not prevent the risk (the necessity
    branch); and (b) the salutary effects of the 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 includes the public
    interest in open and accessible court proceedings (the proportionality
    branch):
Sierra Club
, at pp. 543 and 544. The
    court must consider whether something less than a sealing or confidentiality order
    would be sufficient in the circumstances and, if such an order is made, must
    ensure that it is not overly broad:
Sierra Club
, at p. 546.

[7]

Dealing first with solicitor-client
    communications, Mr. Teplitsky identified certain passages that he asked the court
    to redact for all purposes. He advises that the moving parties will not be
    relying on such evidence in support of the motion to appoint a litigation
    guardian for Mr. Winter. The respondents and the intervener agreed to the
    redactions of solicitor-client communications on this basis. They asked the
    court, however, to exercise appropriate caution in redacting only
    narrowly-defined, actual solicitor-client communications.

[8]

Solicitor-client communications are routinely
    protected from disclosure in litigation, including in particular solicitors
    affidavits for removal from the record and in support of an order to appoint a
    litigation guardian: see, for example,
Evans v. Evans
, 2017 ONSC 5232, 99 R.F.L. (7th) 379;
DiPaolo v.
    Valeriote
, 2011 ONSC 338, 196 A.C.W.S. (3d) 1163; and
    rule 4(13) of the
Family Law Rules
, O. Reg.
    114/99. Redaction or expungement of confidential information from the court
    record for all purposes can be a reasonable alternative:
Sierra Club
, at pp. 546 and 547. That is what Mr. Teplitsky is asking for
    in connection with the passages in the affidavits covered by solicitor-client
    privilege.

[9]

I have examined the two affidavits. There is no
    reference to solicitor-client communications in the March Affidavit, so no
    redaction for this purpose is required. The February Affidavit contains a
    number of explicit references to solicitor-client communications. I direct the
    redaction of paras. 12, 13, the first and fourth sentences of para. 14, and
    paras. 15 (a) and (d) of the February Affidavit, which will no longer form part
    of the court record in the litigation guardian motion, or for any purpose.

[10]

I turn to the references to Mr. Winters
    personal health information. Here, the request is not to expunge the
    information from the court record, but to protect it from disclosure. The
    moving parties seek to rely on this information in support of the motion for a
    litigation guardian, but they do not want any of it disclosed to the public, or
    even to the respondents or the respondents counsel.

[11]

The first branch of the
Sierra Club
test, referred to as the necessity branch, requires the risk to
    the interest sought to be protected by the confidentiality order to be real and
    substantial. The risk must be well-grounded in the evidence and pose a
    serious threat to the interest in question. The interest cannot be merely
    specific to the party requesting the confidentiality order, but one which can
    be expressed in terms of a public interest in confidentiality:
Sierra
    Club
, at p. 544.

[12]

What is the evidence in this case to support the
    necessity for the confidentiality order sought by the moving parties? There is
    no affidavit from them or from Mr. Winter to address this part of the test, nor
    do the February or March Affidavits speak to the impact of disclosure of this
    information on Mr. Winter. Instead, the moving parties rely on the nature of
    the information itself, and argue that there is a public interest in parties to
    litigation bringing forward information about mental health difficulties
    without concern that it will be broadcast in the media or by people who might
    seek to take advantage of that information. Further, the moving parties assert
    that Mr. Winters personal health information should be protected from the
    respondents, because this information is before the court and relevant only to
    the litigation guardian issue, which is between Mr. Winter and the other
    appellants and does not affect the respondents.

[13]

The respondents point out that they were served
    with the motion, including the request for the appointment of a litigation
    guardian for Mr. Winter. They contend that they have an interest in the proper
    progress of the appeal, which may well be affected by the making or refusal of
    an order respecting an appellants disability. In any event, they point to the
    Statement of Claim to argue that Mr. Winter put his mental health in issue
    in the action in the court below. They also assert that the moving parties have
    not established that there is any public interest at stake in respect of Mr.
    Winters personal information. The Toronto Star filed a number of media reports
    in which Mr. Winter has been open and forthcoming about his various personal
    struggles, and submitted that, in the circumstances of this case, there is
    neither a private nor a public interest that would warrant the exceptional
    protection of a confidentiality order.

[14]

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. On
    such a motion, it is important that those who are concerned about a persons
    capacity to participate in litigation and/or to instruct counsel are able to
    bring forward appropriate information for the courts consideration. The issue
    to be determined is the persons capacity at the time the order is considered:
    see, for example,
Family and Childrens Services of the Waterloo
    Region v. J.V.,
2017 ONCA 194, at para. 28;
Constantino
    v. Constantino
, 2016 ONSC 7279, at para. 55. And direct
    medical advice and information about a persons actual mental condition is
    key:
Barnes v. Kirk
, [1968] 2 O.R. 213 (C.A.)
    and
Constantino
, at para. 58.

[15]

In this case, Mr. Winter has consented to an
    assessment to determine whether he is unable to understand information
    relevant to making a decision in respect to an issue or issues in the appeal or
    is unable to appreciate the reasonably foreseeable consequences of a decision
    or lack of decision. The focus of the assessment is on whether Mr. Winter
currently
has capacity to participate in the appeal and to instruct
    counsel. As such, the court need not rely on what Ms. Winter states in her
    February Affidavit about her knowledge of Mr. Winters medical history and past
    diagnosis. This information can be redacted or expunged for all purposes, as a
    reasonable alternative to a confidentiality order.

[16]

I therefore direct that the last sentence of
    para. 7, and the entirety of paras. 8 and 10 of the February Affidavit, be
    redacted for all purposes and not form part of the record in the motion or appeal.

[17]

As for the confidentiality order sought in
    respect of other references to Mr. Winters current mental state, it is
    relevant as observational evidence from someone who knows the litigant well,
    and I am not satisfied on the evidence in this case that the moving parties
    have discharged their burden in respect of the necessity part of the
Sierra
    Club
test for the protection of such evidence. The
    passages in question consist of Ms. Winters personal observations of her
    brother-in-law and inform her opinion as a layperson that he is under a
    disability and requires a litigation guardian. They do not contain any
    diagnosis or any other opinion of a medical practitioner, nor do they refer to
    communications between Mr. Winter and a medical practitioner, which might give
    rise to more specific confidentiality concerns.

[18]

In addition, the remaining passages of the
    affidavits speak of some of the same problems that Mr. Winter has discussed
    openly with the media. In so far as this information is already public, it
    cannot be necessary to protect it with a confidentiality order. In any event,
    on this record there is no evidence to suggest that the disclosure of this
    information would cause any harm to Mr. Winter, or indeed to any broader public
    interest in protecting the personal medical information of vulnerable
    individuals.

[19]

As such, I am not persuaded, on the evidence in
    this case, that there is a real and substantial risk to Mr. Winters privacy
    interests, or to the broader public interest, in the confidentiality of the
    remaining statements of Ms. Winter about Mr. Winters mental state and other
    matters. In arriving at this decision, I place no weight on what is pleaded in
    the Statement of Claim, nor do I agree that Mr. Winter through his pleading
    alone has placed his mental health at issue in the Superior Court action.

[20]

I turn to the request to redact from the March
    Affidavit the references to Jeffrey Barkins health, as well as Exhibit A,
    which is an affidavit of Karen Barkin sworn May 27, 2017, addressing her husbands
    health. Mr. Teplitsky advised that Ms. Barkins affidavit, although served on
    the respondents in the Superior Court proceedings, was never filed in court,
    and the motion in respect of which the affidavit was served did not proceed. I
    was also advised that neither Jeffrey Barkin nor Karen Barkin was served with
    the motion now before this court, which of course has nothing to do with
    Jeffrey Barkin, who is not a party to the appeal.

[21]

The references to Mr. Barkins health and
    Ms. Barkins affidavit are unnecessary and irrelevant to the motion for
    the appointment of a litigation guardian for Mr. Winter. Accordingly, the
    third, fourth and fifth sentences of para. 12 as well as para. 38 and Exhibit A
    to the March Affidavit shall be redacted for all purposes and not form part of
    the court record.

[22]

Finally, I leave for another occasion the
    determination of two issues: (1) whether the respondents in fact have an
    interest in the litigation guardian issue that would permit them to argue for
    or against the appointment when that matter comes back before the court, and
    (2) whether the assessment report to be prepared in this matter will be part of
    the court record and protected from public disclosure if filed (which issue,
    while referred to, was not specifically argued at this time).

[23]

I therefore direct that the following passages
    be redacted and no longer form part of the court record in the litigation
    motion or for any other purpose:

1.

February Affidavit: para. 7 (only the last
    sentence to be redacted); paras. 8, 10, 12, 13 (in their entirety); para. 14
    (only sentences 1 and 4 to be redacted); paras. 15(a) and (d) (in their
    entirety).

2.

March Affidavit: para. 12 (only sentences 3, 4
    and 5 to be redacted); para. 38 (in its entirety); and Exhibit A to the March
    Affidavit, sworn May 26, 2017 (in its entirety).

[24]

These directions shall take effect 14 days after
    the release of these reasons. This will allow those affected to consider what
    steps, if any, they may wish to take to challenge them. For those 14 days, the
    February Affidavit and March Affidavit will remain sealed in their entirety.

[25]

If anyone seeks costs of this motion and there is no agreement,
    submissions are to be exchanged and filed with the court within 45 days of
    these reasons.

K.
    van Rensburg J.A.


