Background
B.E. commenced a civil action in July 2018 against O.R. for an alleged sexual assault occurring in September 2015. O.R. defended and counterclaimed, alleging B.E. was the aggressor. At trial in November 2023, Justice C. Brown found for B.E., awarding $300,000 in general and aggravated damages, $250,000 in punitive damages, and additional amounts for income loss and future care; she dismissed O.R.’s counterclaim. The trial judge had issued a sealing order over trial documents. O.R. appealed the judgment and costs order, seeking additional privacy protections before perfecting his appeal, including sealing the entire appellate file, conducting the hearing in camera, and obtaining a prospective publication ban on the court’s reasons.
B.E. opposed most of these requests. Both parties agreed that some anonymization and limited sealing were appropriate given the sensitive nature of sexual assault allegations and personal medical records involved. The motion came before Justice Dawe as the motion judge, who had to apply the test established in Sherman Estate v. Donovan (2021 SCC 25) to determine what limits on court openness were justified.
The Court’s Holding
Justice Dawe held that while the case involved sufficiently sensitive information to meet the first prong of the Sherman Estate test—including allegations of sexual assault, references to sexual orientation, and extensive personal medical records—most of O.R.’s requested protective orders were neither necessary nor proportionate. The court found that the parties’ dignitary interests could be adequately protected by a discretionary publication ban prohibiting disclosure of their names and identifying information, without sealing the entire court file. The judge reasoned that in criminal sexual assault appeals, similar privacy concerns are routinely addressed through statutory publication bans under s. 486.4 of the Criminal Code, without routinely sealing court files or holding hearings in camera.
The court declined to order that the appeal be heard in camera, finding that counsel could manage the discussion of sensitive details in open court by relying on written factums and avoiding irrelevant revelatory facts. The judge also rejected an anticipatory publication ban on the court’s future reasons, noting the request was premature, policy considerations weighed against prohibiting publication of appellate decisions, and it would be up to the appeal panel to decide whether such an order was necessary when the time came. The court limited sealing to specific subsets of the parties’ sensitive medical records contained in the Appeal Book, Compendium, and Exhibit Book.
Key Takeaways
- Civil sexual assault complainants have dignitary interests similar to criminal sexual assault complainants, but do not automatically require all the same protective measures in appellate proceedings.
- Publication bans can often adequately protect privacy and dignity without resorting to the more intrusive measures of file sealing or in camera hearings, particularly when there is no evidence of widespread public interest in accessing court files.
- Courts should not routinely seal entire court files in sexual assault cases; sealing orders should be tailored to address the specific sensitive information at serious risk of causing dignitary harm.
- Criminal law principles regarding sexual offence appeals inform the exercise of discretion in civil sexual assault appeals, and principles of open justice should generally prevail unless strict necessity and proportionality are demonstrated.
Why It Matters
This decision provides important guidance on how Canadian appellate courts will balance competing interests in civil sexual assault litigation—dignity and privacy concerns on one hand, and the constitutional principle of open courts on the other. The ruling suggests that litigants in such cases should not expect blanket sealing orders or closed hearings as a matter of course, even when dealing with highly sensitive personal information. Instead, courts will likely impose publication bans combined with limited anonymization while keeping files accessible to the public and hearings open.
For sexual assault complainants and defendants in civil cases, the decision clarifies that pursuing appellate relief in such matters requires acceptance of some public engagement with the case, notwithstanding the sensitive subject matter. The decision also reinforces that appellate courts will independently assess necessity and proportionality rather than simply extend the protective orders made by trial courts, giving appellate panels significant discretion to recalibrate protections as cases progress through different procedural stages.