



COURT OF APPEAL FOR ONTARIO

CITATION: Elbakhiet v. Palmer, 2019 ONCA 333

DATE: 20190425

DOCKET: C65272

Doherty, Simmons and
    Pardu JJ.A.

BETWEEN

Amira Khalid Mo
    Elbakhiet, Abdelrhman Elkh Ahmed,
Maha Ahmed and Niem Ahmed

Plaintiffs (Appellants)

and

Derek A. Palmer
,
Rockie Palmer
,
    Metcalfe Realty Company

and
    Kingsway General Insurance Company

Defendants (
Respondents
)

Joseph Y. Obagi, for the appellants

Kevin P. Nearing, for the respondents

Heard: January 30, 2019

On appeal from the order of Justice Martin S. James of
    the Superior Court of Justice, dated March 14, 2018, with reasons reported at
2018 ONSC 105
.

REASONS FOR DECISION

[1]

The issues on appeal concern the propriety of a December 2017
[1]
sealing order in relation to psychometric testing documents produced and marked
    as exhibits during the 2012 trial of a personal injury action.

[2]

Under a March 2012 consent order, Dr. Janet Munson was required to
    produce the psychometric testing documents to counsel for both parties. Dr.
    Munson is a neuropsychologist. She was retained by the respondents to conduct
    testing on one of the appellants. The psychometric testing documents at issue
    include test questions, test answers and responses, scoring, stimuli, manuals,
    and instructions, all in relation to 15 specified tests and any other
    psychometric testing Dr. Munson administered to the particular appellant.

[3]

The March 2012 consent order included several terms relating to the use
    and confidentiality of the psychometric testing documents, including a
    temporary sealing order in the event any of the documents were marked as
    exhibits. During cross-examination of Dr. Munson at the 2012 trial, appellants
    counsel referred her to the psychometric testing documents and asked that they
    be marked as exhibits. The psychometric testing documents thus became subject
    to the temporary sealing order set out in the March 2012 consent order.

[4]

As of December 2017, the temporary sealing order had expired and the psychometric
    testing documents had been returned to appellants counsel by the court. The
    December 2017 order amended the March 2012 consent order by deleting the terms
    specifying that the sealing order was temporary and would expire 60 days after
    judgment was entered in the action.

[5]

In making the temporary sealing order permanent, the motion judge considered
    the need to balance necessity and proportionality in accordance with decisions
    such as
Sierra Club of Canada v. Canada (Minister of Finance)
, 2002
    SCC 41, [2002] 2 S.C.R. 522;
R. v. Mentuk
, 2001 SCC 76, [2001] 3 SCR
    442; and
Dagenais v. C.B.C.
, [1994] 3 S.C.R. 835. He found that protecting
    the integrity of test procedures was an important interest, worthy of protection.
    Further, he concluded that making the temporary sealing order permanent several
    years after the fact would not seriously affect public confidence in the
    judicial system or erode the open courts principle. In that regard, he noted
    that the trial had been conducted in open court. Moreover, there was no
    apparent impact on or prejudice to the appellants in making the sealing order
    permanent. Finally, in his view, the order was not overreaching.

[6]

In our view, the appeal must be allowed. As the psychometric testing
    documents were no longer in the courts possession, the respondents request to
    make the 2012 temporary sealing order permanent was misconceived. As of
    December 2017, there was no issue about members of the public viewing the psychometric
    testing documents at the court house; rather, the issue was whether the
    appellants or their counsel could use the documents for purposes other than
    this litigation or disseminate them to others. Further, and in any event, on
    the facts of this case, we are not satisfied that the motion judge could conduct
    the analysis necessary to make either a sealing order or a confidentiality
    order when the documents at issue were not before the court. Similarly, we are
    not satisfied that the motion judge engaged in the balancing necessary to make either
    order.

Background

(i)

The personal injury action and Dr. Munsons evidence

[7]

The personal injury action arose out of a 2007 car accident. One of the
    appellants, Ms. Elbakhiet, claimed damages against the respondents in part for
    post-concussive syndrome and related impairments she claimed arose from the
    accident. Dr. Munson conducted psychometric testing on Ms. Elbakhiet and was
    called as an expert witness for the respondents. It was her opinion that Ms. Elbakhiet
    had deliberately underperformed and was exaggerating her claims.

[8]

The appellants counsel sought production of the psychometric testing
    documents to challenge the admissibility of and, once admitted, the weight of,
    Dr. Munsons evidence. Among other things, he challenged the reliability of
    some of the testing for a person whose first language was not English, Dr.
    Munsons failure to follow certain testing instructions, and Dr. Munsons
    reliance on what he referred to as a debunked study.

(ii)

The March 2012 consent order

[9]

As we have said, the March 2012 consent order included several terms
    relating to use and confidentiality of the psychometric testing documents.

[10]

Paragraph
    1 of the March 2012 consent order required production of the specified
    psychometric testing documents to counsel for both parties.

[11]

Except
    with leave, para. 2 prohibited counsel from providing copies of the material produced
    to anyone other than an Ontario psychologist to assist counsel with the action.

[12]

Paragraph
    3 stipulated that the materials produced may not be used for any purpose other
    than for the conduct of this litigation.

[13]

Paragraph
    4 required the return of the materials produced to Dr. Munson within seven days
    of the final disposition of the action.

[14]

The
    temporary sealing order in the event any of the materials became exhibits was
    set out in para. 5, which is reproduced below. The underlined portion of this paragraph
    was added in handwriting by the trial judge:

5. THIS COURT FURTHER ORDERS that
    if any of the materials produced pursuant to paragraph 1 hereof should be made
    exhibits at trial, they will be given letter rather than numerical designations
    and will be the subject of a temporary sealing order
to expire 60 days after
    Judgment is entered in this matter,
subject to further Order of the Court.

[15]

Paragraph
    6 required that, apart from any exhibits, any copies of the materials produced
    made to assist the jury or the court be destroyed immediately upon the conclusion
    of the trial.

(iii)

The temporary sealing order expires and the trial exhibits are returned
    to appellants counsel

[16]

Judgment
    was entered in the action on July 9, 2012. Accordingly, the temporary sealing
    order in para. 5 of the March 2012 consent order expired on September 7, 2012.

[17]

However,
    the action was not finally disposed of until January 22, 2015, when the
    appellants application to the Supreme Court of Canada for leave to appeal the
    costs award (which had been reduced by this court) was dismissed. In accordance
    with r. 52.04(4) of the
Rules of Civil Procedure
, RRO 1990, Reg 194
[2]
,
    at some point, the psychometric testing documents marked as trial exhibits were
    returned to appellants counsel, the lawyer who filed them.

[18]

In
    oral submissions on the appeal, appellants counsel confirmed that the original
    exhibits were returned to Dr. Munson, as required under the March 2012 consent
    order. However, he retained copies of the psychometric testing documents. Given
    that they were marked as trial exhibits and the temporary sealing order had
    expired, in his view, they were then in the public domain. Appellants counsel
    was asked at the appeal hearing about para. 3 of the March 2012 consent order
    limiting use of the materials produced to this litigation. Counsel asserted
    initially that it was simply a statement of the implied undertaking rule, which
    ceases to have effect once documents are made exhibits, unless the exhibits are
    subject to a sealing order. In any event, he noted that no issue had been
    raised about para. 3 in this proceeding. In reply submissions, counsel
    acknowledged that his clients may have to address para. 3 before making any use
    of the relevant documents but maintained that the question was not in issue on
    this appeal.

(iv)

The respondents motion

[19]

In
    March 2015, the respondents moved for an order (i) extending the time for
    seeking a permanent sealing order with respect to the psychometric testing documents
    produced under the March 2012 consent order
[3]
;
    (ii) making the temporary sealing order permanent; and (iii) in addition or in
    the alternative, for directions concerning whether, under para. 3 of the March
    2012 consent order (the paragraph that restricted use of the materials produced
    to this proceeding), the manuals produced by Dr. Munson could be used in other
    cases before the court.

[20]

Ultimately,
    the respondents did not pursue the latter request. Apparently, this was because
    an unrelated action, in which appellants counsel sought to use at least some
    of the psychometric testing documents at issue to cross-examine Dr. Munson, had
    settled.
[4]

[21]

In
    November 2016, the respondents brought a supplementary motion requesting orders
    sealing the transcripts of Dr. Munsons evidence on the
voir dire
and
    at the trial of this action. However, the respondents abandoned these requests
    when the motion for a permanent sealing order was heard in December 2017.

(v)

The December 2017 formal order

[22]

The
    December 2017 formal order amends para. 5 of the March 2012 consent order by
    deleting the word temporary and the handwritten interlineation to expire 60
    days after Judgment is entered in this matter. As amended, para. 5 March 2012
    consent order reads as follows:

5. THIS COURT FURTHER ORDERS that
    if any of the materials produced pursuant to paragraph 1 hereof should be made
    exhibits at trial, they will be given letter rather than numerical designations
    and will be the subject of a sealing order, subject to further Order of the
    Court.

Discussion

(1)

An order sealing the psychometric testing documents from public view was
    no longer available in December 2017

[23]

Section
    137(1) of the
Courts of Justice Act
, RSO 1990, c C.43, provides that
    on payment of the prescribed fee, a person is entitled to see any document
    filed in a civil proceeding in a court, unless an Act or an order of the court
    provides otherwise. Section 137(2) permits a court to order that any document
    filed in a civil proceeding before it be treated as confidential, sealed and
    not form part of the public record.

[24]

Given
    that the psychometric testing documents were no longer in the courts
    possession as of December 2017, no purpose was served by deleting the language
    from para. 5 of the March 2012 consent order making the sealing order
    temporary. The psychometric testing documents were not part of any court record
    and they were not available for review at the court house by members of the
    public.

(2)

The motion judge erred in applying the
Sierra Club / Dagenais / Mentuk
test

[25]

The
    motion judge approached the respondents motion as addressing whether the
    psychometric testing documents should be treated as now being in the public
    domain.

[26]

The
    principles to be applied on a motion prohibiting documents filed in court proceedings
    from public dissemination are set out at paras. 53-55 of
Sierra Club
,
    which adapts the
Dagenais

and
Mentuk
test to the
    confidentiality of documents context. To obtain a confidentiality order, the
    requesting party must satisfy a two-part test:

i)

the order must be necessary to prevent a serious risk to an important
    interest, including a commercial interest, because reasonable alternative
    measures will not prevent the risk; and

ii)

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 includes
    the public interest in open and accessible court proceedings.

[27]

To
    meet the necessity part of the test, the requesting party must show: an
    important interest that can be expressed as a public interest; a real and
    substantial risk that is well-grounded in the evidence and that poses a serious
    threat to the interest in question; and no other reasonable alternative to the
    order sought.

[28]

In
    the motion judges view, the desirability of keeping test materials,
    interpretive manuals, and test protocols out of the hands of prospective
    test-takers seem[ed] almost self-evident, considering the potential mischief
    that widespread publication and distribution could entail. He found protecting
    the integrity of testing procedures and interpretive manuals an important
    interest and the evidentiary threshold for establishing its importance to
    neuropsychologists relatively low. In his view, it was not an overreaching
    order.

[29]

As
    for proportionality, he noted that the trial had been conducted in public and
    that there was no suggestion of prejudice to the appellants. He concluded that
    keeping the testing materials and related documents that were marked as
    exhibits from public dissemination would not erode public confidence in the
    judicial system or erode the open courts concept.

[30]

We
    see at least two errors in the motion judges approach. First, he concluded
    there was an important public interest in the confidentiality of all the
    documents marked as exhibits without examining them. In particular, he did not
    consider to what extent they were already in the public domain through the
    trial judges reasons on the admissibility
voir dire
relating to Dr.
    Munsons evidence or the transcripts of her testimony on the
voir dire
or at the trial.

[31]

The
    respondents argue that confidentiality orders have been made in other cases
    without the need to examine the documents.
Sierra Club
is but one
    example. Here, say the respondents, all that is at issue are test manuals  the
    confidentiality of which is effectively self-evident, as the motion judge has
    found.

[32]

We
    do not accept this submission. At the appeal hearing, counsel did not agree on
    the content of the material subject to the sealing order. Contrary to
    respondents counsels submission, appellants counsel asserted that the produced
    materials marked as exhibits included not only the manuals but also studies
    showing the science underlying the tests, instructions on administering the
    tests, as well as Dr. Munsons notes concerning how she administered the tests
    and Ms. Elbakhiets performance on the tests. Without examining the exhibits,
    the motion judge could not assess the extent to which test security would be
    put at risk by public disclosure or whether test security was truly a factor in
    relation to all the material marked as exhibits. Nor could he assess whether
    some part of the material was already in the public domain through Dr. Munsons
    evidence or the trial judges reasons on the
voir dire
. If that were
    the case, there would be little purpose in a confidentiality order. See
H. (M.E.)
    v. Williams
, 2012 ONCA 35, 108 O.R. (3d) 321, at para. 63.

[33]

This
    case is distinguishable from
Sierra Club
because, in that case, the
    appellant Atomic Energy of Canada Ltd. (AECL) did not own the documents the respondent
Sierra Club
sought to have produced. China owned the documents and
    would only authorize their production if AECL obtained a confidentiality order.
    AECL filed a summary of the documents, but because of the ownership issue,
Sierra
    Club
was an all or nothing case. Without examining the material marked as
    exhibits, the motion judge could not be satisfied this was such a case.

[34]

The
    motion judges second error was in failing to consider, as part of the
    proportionality analysis, the public interest in access to material that would
    facilitate cross-examination of Dr. Munson in other proceedings. Appellants
    counsel explained how he had used some of the documents at issue to cross-examine
    Dr. Munson at trial.

[35]

Respondents
    counsel argued that appellants counsel overstated the impact of his
    cross-examination and disputed the necessity of further disclosure since the
    matter was fully concluded and the transcripts of the trial and related
    proceedings were available.

[36]

In
    our view, the respondents submissions miss the point. The question for the
    motion judge was whether the salutary effects of a confidentiality order
    outweighed the deleterious effects, including the impact on the open courts
    principle. When addressing proportionality, the motion judge should have
    considered the public interest in litigants access to material that facilitates
    the cross-examination of an expert witness.

Disposition

[37]

Based
    on the foregoing reasons, para. 2 of the December 2017 order amending para. 5
    of the March 2012 consent order by making the temporary sealing order contained
    therein permanent is set aside. We observe, however, that before any use can be
    made of the psychometric testing documents that were marked as exhibits for
    purposes other than this litigation or before those documents can be given to
    any third party, it will be necessary that one of the parties seek an
    interpretation or variation of paras. 2 and 3 of the March 2012 consent order.

[38]

We
    now turn to costs. This appeal was necessary because respondents counsel
    misconceived the pertinence of a sealing order after all documents had been
    released by the court and abandoned the part of the motion which would have
    dealt with the issue of confidentiality. There is no reason that costs should
    not follow the result on both the motion and the appeal. Counsel for the
    parties agreed that in the event the appeal was allowed, the appellants would
    be entitled to costs of the appeal fixed at $17,500, and to costs of the motion
    in the sum of $16,783.87, the same amount ordered initially in favour of the
    respondents. We therefore set aside the costs order in the December 2017 order
    and order costs for the appeal and the motion as agreed by counsel in favour of
    the appellants.

Doherty J.A.

Janet Simmons J.A.

G. Pardu J.A.





[1]
The sealing order motion was heard on December 12, 2017, but the motion judges
    reasons were released on March 14, 2018. Nonetheless, the formal order is dated
    December 12, 2017. We will therefore refer to the order as the December 2017
    order.



[2]
Rule 52.04 provides:

52.04 (1) Exhibits shall be marked and numbered
    consecutively, and the registrar attending the trial shall make a list of the
    exhibits, giving a description of each exhibit, and stating by whom it was put
    in evidence and, where the person who produced it is not a party or a partys
    lawyer, the name of that person.

(2) At any time following the trial judgment, on
    requisition by the lawyer or party who put an exhibit in evidence or the person
    who produced it and on the filing of the consent of all parties represented at
    the trial, the registrar may return the exhibit to the person making the
    requisition.

(3) Subject to subrule (2), the exhibits shall remain
    in the possession of the registrar or the registrar of the court to which an
    appeal is taken,

(a) until the time for an
    appeal has expired; or

(b) where an appeal has been
    taken, until it has been disposed of.

(4) On the expiration of the time for appeal or on the
    disposition of the appeal, the registrar on his or her own initiative shall
    return the exhibits to the respective lawyers or parties who put the exhibits
    in evidence at the trial.



[3]
An extension was necessary because there was confusion about the expiry of the
    temporary sealing order. Dr. Munson had separate counsel in relation to the
    March 2012 consent order. She deposed that she was unaware of the stipulation
    that the temporary sealing order would expire 60 days after Judgment was
    entered in the action. The appellants did not oppose the extension and
    undertook not to use the material produced pending resolution of the
    respondents motion.



[4]
Dr. Munson provided information about the proposed use of the psychometric
    testing documents in the unrelated action in her affidavit filed on the
    respondents motion. Respondents counsel explained in oral submissions on the
    appeal that the unrelated action settled.


