



COURT OF APPEAL FOR ONTARIO

CITATION: P1 v. XYZ School, 2021 ONCA 901

DATE: 20211217

DOCKET: M52787 (C69600) &
    M52786 (C69592)

Doherty,
    Benotto and Huscroft JJ.A.

BETWEEN

P1, by his Litigation
    Guardian Parent P1, Parent P1 and Parent P2

Appellants/Plaintiffs

and

XYZ
    School, A.A., D1, a Minor by his Litigation Guardian, Parent D1, D2, a Minor by
    his Litigation Guardian, Parent D2, B.B., C.C. and E.E.

Respondents on Appeal/Defendants

and

Toronto
    Star Newspapers Ltd.

Respondent on Appeal/Appellant

Graeme A. Hamilton, for D2, a Minor by his Litigation
    Guardian, Parent D2

Brendan F. Morrison, for D1, a Minor by his Litigation
    Guardian, Parent D1

Emma Carver, for Toronto Star Newspapers Ltd.

Broghan Masters, for the plaintiffs

Kathryn McCulloch, for XYZ School, A.A., B.B., C.C. and
    E.E.

Heard: December 2, 2021

On appeal from
    the order of Justice Grant R. Dow of the Superior Court of Justice, dated June
    4, 2021.

Benotto J.A.:

[1]

This is a motion to quash the appeals of a
    non-publication and sealing order. The question is whether the order under
    appeal is final or interlocutory.

[2]

As I will explain, the legal nature of the order
    under appeal finally determines the constitutional rights of the media and thus
    is a final order for the purposes of appeal. Although the order is
    interlocutory with respect to the other appellants, I would nonetheless direct
    that the appeals be heard together.

The underlying action

[3]

The action is brought by a minor and their
    litigation guardian parents (collectively, the plaintiffs). The claim arises
    out of an alleged sexual assault on the child by classmates during an overnight
    school trip. The claim is against the classmates, the school and three school
    employees who  it is alleged  failed to protect and adequately respond to the
    assault (collectively, the school defendants).

[4]

For the purposes of this motion, there is no
    need to further articulate the facts.

The publication ban and sealing orders

[5]

The minor defendants moved for a non-publication
    and sealing order. The school supported the minors position. The plaintiffs
    opposed the ban with respect to the name of the school and/or those employed by
    the school. The motions judge granted an interim partial sealing order and
    publication ban on January 28, 2020, pending a full hearing of the motion. He
    made further orders continuing the publication ban and anonymizing certain
    terms to be used in the action on February 14, 2020 and March 13, 2020. The
    sealing order and publication ban were continued on May 25, 2020.

[6]

The media had no notice of the motion or the
    order until February 12, 2021. The Toronto Star Newspapers Ltd. requested that
    the motion judge allow the publication as to the identity of the school,
    identified only as XYZ, and the school employees. There was no issue then or
    now about protecting the identity of the minor defendants.

[7]

Following a full hearing on the issue, on June
    4, 2021, the motion judge imposed a publication ban over the identity of the
    school and sealed the court file. He concluded that the terms of the previous
    orders shall remain in place, subject to further order of the Court.

The appeals

[8]

The Toronto Star and the plaintiffs appeal the
    June 4, 2021 order which deals with identity of the school defendants. For the
    purposes of this motion, I do not need to address the details of the order and
    the arguments on appeal.

Motion to quash

[9]

The minor defendants (not the school defendants)
    move to quash the appeal because they say it is not a final order and no appeal
    lies to this court as of right. They submit that the order does not finally
    dispose of the matter between the parties. They also point to the motion
    judges words referring to a further order. They argue that the order is
    therefore interlocutory, and an appeal lies to the Divisional Court with leave.

[10]

The appellants submit that the order is final
    because they have been deprived of their freedom of expression contrary to the
    open court principle and as protected by s. 2(b) of the

Canadian Charter of Rights and Freedoms
. The Toronto Star also submits that the order denies its
    constitutional right to contemporaneously report on, scrutinize and comment on
    Canadas courts.

This courts jurisprudence with respect to
    final/interlocutory orders

[11]

For nearly 90 years, this court has approached
    the issue of final/interlocutory orders by beginning with this distinction laid
    out in
Hendrickson v. Kallio
, [1932] O.R. 675
    (C.A.):

The interlocutory
    order from which there is no appeal is an order which does not determine the
    real matter in dispute between the parties  the very subject matter of the
    litigation, but only some matter collateral.

[12]

Since then, this court has, on many occasions,
    addressed
Hendrickson.
In the recent decision
    of
Paulpillai Estate v. Yusuf
, 2020 ONCA 655,
    at para. 16, Jamal J.A. (as he then was) summarized the law as follows:

The main principles that determine whether an order is
    interlocutory or final are well known:

1. An appeal lies from the courts order, not from the
    reasons given for making the order.

2. An interlocutory order does not determine the real
    matter in dispute between the parties  the very subject matter of the
    litigation  or any substantive right. Even though the order determines the
    question raised by the motion, it is interlocutory if these substantive matters
    remain undecided.

3. In determining whether an order is final or
    interlocutory, one must examine the terms of the order, the motion judges
    reasons for the order, the nature of the proceedings giving rise to the order,
    and other contextual factors that may inform the nature of the order.

4. The question of access to
    appellate review must be decided on the basis of the legal nature of the order
    and not on a case by case basis depending on the application of the order to
    the facts of a particular case. In other words, the characterization of the
    order depends upon its legal nature, not its practical effect. [Citations
    omitted.]

[13]

The
    moving parties rely on these principles to support their position. They say
    that, because the matter in dispute in the action has not been determined, it
    is interlocutory. Further, they submit that the legal nature of the order, not
    its practical effect, means that the order is interlocutory.

[14]

The
    Toronto Star in turn submits that, in
Paulpillai,
the appealing party
    was a party to the underlying litigation, and this makes all the difference.
    While the matter in dispute between the plaintiffs and the defendants has not
    been determined, the matter in dispute for the Toronto Star  a non-party to
    the underlying action  has been because their
Charter
rights to
    freedom of the press were determined
[1]
.

[15]

When
    an order is directed to a non-party to litigation, the issue of whether it is
    interlocutory or final is more difficult. In
Houle v. St. Jude Medical
    Inc.,
2018 ONCA 88, 420 D.L.R. (4th) 444, this court commented on this
    difficulty. Nordheimer J.A. considered two lines of cases. First,
Smerchanski
    v. Lewis
(1980), 30 O.R. (2d) 370 (C.A.), at para. 18:

This Court has held that an order
    made in a contest between a party to an action and someone who is not a party
    is a final order, appealable without leave, if the order finally disposes of
    the rights of the parties in the issue raised between them.

[16]

That
    principle was followed in other cases including
Morse Shoe (Canada)
    Ltd. v. Zellers Inc.
(1997)
,
100 O.A.C. 116 (C.A.);
Pennington
    v. Hawley
, [2005] O.J. No. 3591 (C.A.); and
CanWest
    MediaWorks Inc. v. Canada (Attorney General)
, 2007 ONCA 567, 227 O.A.C.
    116.

[17]

On
    the other hand, other cases have sought to confine the decision in
Smerchanski
to
    its particular facts, which means that it is not necessarily true that all
    orders directed to a non-party must be considered final: see
CC&L
    Dedicated Enterprise Fund (Trustee of) v. Fisherman
(2001), 55 O.R. (3d)
    794 (C.A.), at para. 16:

Smerchanski
was not
    intended to mean that all orders directed to a non-party must be final, and the
    principle expressed therein should not be further expanded in that way.

[18]

In
    the end, Nordheimer J.A. did not determine the issue because he concluded that
    no substantive issue, nor right of the parties, was determined by the
    conditional approval order.

[19]

We
    are left with the firm principles from
Paulpillai
that do not address either
    non-parties or the challenges that arise when those principles affect a non-party.
    If the
Paulpillai
factors are applied to non-parties, it follows that
    based on the principles from
Fisherman
, the order directed to a non-party
    must determine substantive rights for it to be final. The result, in my view,
    would be that:

1.

A final order must deal with substantive rights.

2.

All orders directed to non-parties are not necessarily final.

3.

To be final, an order directed to non-parties must determine the non-parties
    substantive rights.

Applying the principles to this motion

[20]

I
    will consider first the position of the Toronto Star, then the plaintiffs.

(1)

Does the order deal with and determine substantive rights of the Toronto
    Star?

[21]

The
    moving parties submit that it is the substantive rights of parties to the
    litigation that are to be considered. An order that does not determine a
    substantive claim or defence and leaves the merits of the case to be determined
    is interlocutory. The order under appeal, they submit, deals with a collateral
    matter and in any event, might be changed by the motions judge in the future.

[22]

I
    do not agree with this proposition.

[23]

Though
    sealing orders are normally interlocutory as concerns the parties to the
    litigation, in this case the non-partys substantive rights are finally
    determined by the order. The rights are constitutional in nature and guaranteed
    by s. 2(b) of the
Charter
. They are finally determined because the sealing
    order precludes the ability of the Toronto Star to contemporaneously access,
    report and scrutinize all stages of a proceeding on behalf of the public.

[24]

The
    freedom of the press has been historically recognized by the Supreme Court as a
    fundamental right in Canada. As Lamer C.J. wrote in the leading case,
Dagenais
    v. Canadian Broadcasting Corp.
(1994), O.R. (3d) 816, at p. 876, a
    fundamental principle of our justice system  freedom of expression, including
    freedom of the press, is now recognized as a paramount value in Canadian
    society, as demonstrated by its enshrinement as a constitutionally protected
    right in s. 2(b) of the
Charter
.

[25]

The
    Supreme Court has found that the open court principle is bound up with the constitutionally
    protected right of freedom of the press and is a public good: see
Canadian
    Broadcasting Corp. v. Manitoba
, 2021 SCC 33, at paras. 3, 46.

[26]

The
    importance of the open court principle has been recently re-affirmed in
Sherman
    Estate v. Donovan
,
2021
    SCC 25, 458 D.L.R. (4th) 361, at paras. 1-2:

This Court has been resolute in recognizing that the open court
    principle is protected by the constitutionally‑entrenched right of
    freedom of expression and, as such, it represents a central feature of a
    liberal democracy. As a general rule, the public can attend hearings and
    consult court files and the press  the eyes and ears of the public  is left
    free to inquire and comment on the workings of the courts, all of which helps
    make the justice system fair and accountable.

Accordingly, there is a strong
    presumption in favour of open courts. It is understood that this allows for
    public scrutiny which can be the source of inconvenience and even embarrassment
    to those who feel that their engagement in the justice system brings intrusion
    into their private lives. But this discomfort is not, as a general matter,
    enough to overturn the strong presumption that the public can attend hearings
    and that court files can be consulted and reported upon by the free press.

[27]

The
    Toronto Star has no interest in the outcome of the litigation between the plaintiffs
    and the defendants. The Toronto Stars interest is to be able to perform its
    function as the eyes and ears of the public.

[28]

The
    facts here are analogous to those in
Hollinger Inc. v. The Ravelston

Corporation
,
    2008 ONCA 207, 291 D.L.R. (4th) 15, where this court considered an order
    affecting a non-party.

[29]

In
Hollinger,
the motion judge made a sealing and protection order in
    respect of material filed for a
Mareva
injunction. The Globe and Mail
    sought intervener status to set aside the order. The motion judge dismissed the
    intervener motion. This court allowed the appeal, but for two different
    reasons. Two judges concluded that the motion judges refusal to grant
    intervener status for the limited purpose of challenging the order was in error
    and was itself a final order. They determined that the matter should be
    returned to the Superior Court for a new hearing and consequently there was no
    need to determine whether the order  standing alone  would be final or
    interlocutory for purposes of appeal routes. Juriansz J.A., however, squarely
    dealt with issue concluding that the order affecting the Globe and Mail was
    final. He would not have returned the matter to the Superior Court but would
    have granted intervener status.

[30]

The
    reasons of Juriansz J.A. align with the situation here. At para. 52, he stated:

The principle [of interlocutory or
    final] becomes difficult to apply when third parties, unconcerned with the
    merits of an action, become involved in the proceedings for a limited purpose.
    The Globe, in arguing the protective order was final, emphasized it was a third
    party uninvolved in the action. I agree this is the key to the determination of
    the issue.
[2]

[31]

Juriansz
    J.A. went on to say at para. 54 that whether the motion judge's order
    maintaining the protective order is interlocutory or final depends on its
    effect on the rights of the Globe, considering what was at stake for the
    Globe in the motion. There, like here, what was at stake for the Globe was the
    ability to exercise its routine right of access to a court file, based on
    freedom of the press. Here, what is at stake for the Toronto Star is freedom of
    the press.

[32]

The
    moving parties say that the rights of the Toronto Star are not finally
    determined because the motion judge added the words subject to further order
    of the Court. Most orders are subject to further order. Even if the motion
    judge expected the matter to be returned to him, the ability of the Toronto
    Star to have access to the court file and report was affected. I adopt the
    reasoning of Juriansz J.A. at paras. 56 and 58:

I attach no importance to the fact that the literal wording of
    the order makes it apply indefinitely. The reasons of the motion judge make
    evident that he regarded the order as temporary. He fully expected the order
    would be set aside at someone's initiative after the U.S. proceedings ended.
    Even if the protective order, despite its wording, is regarded as sealing the
    court file temporarily, I still would consider it a final order.



In the context of the Globe's
    motion, the potential right to have access later is not the same as the actual
    right to have access now. The decision to maintain the protective order finally
    determined that the Globe may not exercise its constitutional right to freedom
    of the press in the circumstances that were before the motion judge. A motion
    brought later will not revisit that question but will decide whether the Globe
    may exercise its right of access in other circumstances.

[33]

Although
    the moving parties urge us to reject the reasoning of Juriansz J.A., I see no
    basis to do so. The reasoning addresses the very issue before us. A
    constitutional right to freedom of the press is a substantive right that is to
    be exercised contemporaneously. Insofar as the order affects the Toronto Star,
    it is final.

(2)

The Plaintiffs appeal

[34]

The
    plaintiffs allege that the order as it applies to them is final because their
    right to freedom of expression is affected too. I do not agree. The matter
    between the plaintiffs and the defendants has not yet been determined.

[35]

As
    to the plaintiffs, the order is not final. That said, the plaintiffs wish to
    continue their appeal. They submit that, if the order is considered
    interlocutory in relation to them, this court should assume jurisdiction under
    s. 6(2) of the
Courts of Justice Act
. That section provides:

(1)

Combining of appeals from other courts

(2) The Court of
    Appeal has jurisdiction to hear and determine an appeal that lies to the
    Divisional Court or the Superior Court of Justice if an appeal in the same
    proceeding lies to and is taken to the Court of Appeal. R.S.O. 1990,
    c. C.43, s. 6 (2); 1996, c. 25, s. 9 (17).

[36]

The
    appeal by the Toronto Star and the plaintiffs is in the same proceeding and
    deals with the same order. But this court has repeatedly said that, for s. 6(2)
    to apply, the appellant must have sought and obtained leave from the Divisional
    Court: see
Blair v. Ford
, 2021 ONCA 841, at para. 28. They have not
    done so.

[37]

However,
    this court may assume jurisdiction over the interlocutory order, even if leave
    from the Divisional Court has not been sought, if the interlocutory and final orders
    are so interrelated that leave would inevitably have been granted on the
    interlocutory issue: see
Lax v. Lax
(2004), 70 O.R. (3d) 520 (C.A.),
    at para. 9.

[38]

Here,
    we have both a final and interlocutory order. The final order is the non-publication
    and sealing order as it applies to the Toronto Star. The interlocutory order is
    the non-publication and sealing order as it applies to the plaintiffs.

[39]

This
    is exactly the type of case that the
Lax
test, even if read narrowly,
    is meant to capture. The two appeals for each Toronto Star and the plaintiffs
    deal with the same non-publication and sealing order. In the unique
    circumstances of this case, it makes no administrative sense to have one
    portion of the appeal proceed at this court and require that leave be sought
    for the interlocutory portion. Inevitably, leave will be granted because the Toronto
    Star portion of the appeal will proceed at this court, and the two appeals are
    substantively the same.

[40]

I
    would therefore, in these unusual circumstances, allow the appeal to proceed in
    this court and to be placed on this list to be argued with the Toronto Star
    appeal.

Conclusion

[41]

I
    would dismiss the motion to quash the appeals. I would not order costs.

Released: December 17, 2021 D.D.

M.L. Benotto J.A.

I agree Doherty J.A.

I agree Grant Huscroft
    J.A.





[1]
The plaintiffs submit that they too have s. 2(b) rights determined. This is
    addressed later in the reasons.



[2]

While courts have repeatedly used the term third party, a
    more accurate description is  as used in these reasons  non-parties.


