H.A. et al. v. S.M. et al.; Post Media Network Inc. et al.,
[Indexed as: A. (H.) v. M. (S.)]
2017 ONSC 5650
Superior Court of Justice, Munroe J. September 22, 2017
Charter of Rights and Freedoms — Freedom of the press — Open
court principle — Plaintiff suing complainant and police investigators
after acquitted of sexual assault — Police defendants moving unsuccessfully for order sealing material to be filed in support of their motion for
summary judgment under Rule 20 of Rules of Civil Procedure — Publication ban in criminal case continuing and adequately protecting
privacy of complainant/defendant — Rule 20 filings not breaching publication ban — Police defendants failing to overcome presumption that
court proceedings will be open — Rules of Civil Procedure, R.R.O. 1990,
Reg. 194, Rule 20.
After being acquitted of sexual assault, the plaintiff sued the complainant and
the police for various causes of action including negligent investigation by the
police. The police defendants brought a motion for an order sealing the material
to be filed in support of their motion for summary judgment under Rule 20 of
the Rules of Civil Procedure. The media sought intervenor status and contested
Held, the motion should be dismissed.
Intervenor status is routinely granted to the media on a motion to ban publication of a court proceeding.
A publication ban which was granted in the criminal case remained in effect.
Any additional order, especially as proposed by the police defendants, could create confusion and dilute the strength of the original order. The privacy of the
complainant/defendant was adequately protected by the publication ban. The
filings of material in support of the Rule 20 motion did not violate the publication
ban. The disclosure framework in the Municipal Freedom of Information and
Protection of Privacy Act (“MFIPPA”), R.S.O. 1990, c. M.56 should not be adopted
by the court. The MFIPPA does not apply to court filings, and courts are not
“institutions” as defined in the MFIPPA. The police defendants, who had filed
only the affidavit evidence of their lawyer asserting that the intended Rule 20
material contained sensitive and identifying information about the complainant/defendant, the plaintiff and others, had failed to overcome the presumption
that court proceedings will be open.
Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835,  S.C.J.
No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d)
289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, EYB 1994-67668, 51 A.C. W.S. (3d) 1045,
25 W.C.B. (2d) 304; R. v. Mentuck,  3 S.C.R. 442,  S.C.J. No. 73,
2001 SCC 76, 205 D.L.R. (4th) 512, 277 N.R. 160,  2 W. W.R. 409, J.E. 2001-
2142, 163 Man. R. (2d) 1, 158 C.C.C. (3d) 449, 47 C.R. (5th) 63, 51 W.C.B. (2d)
J. Doe v. TBH,  O.J. No. 839, 45 C.P.C. (3d) 1, 61 A.C.W.S. (3d) 665
(Gen. Div.); K. (K.) v. G. (K. W.),  O.J. No. 5679, 48 C.P.C. (6th) 71 (S.C.J.),