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CIVIL EVIDENCE - Documentary evidence - Sealed evidence

Friday, May 31, 2019 @ 8:59 AM  


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Appeal by the plaintiffs from a 2017 sealing order in relation to psychometric testing documents produced and marked as exhibits during a 2012 trial of a personal injury action. Under a 2012 consent order, a neuropsychologist retained by the respondents to conduct testing on one of the appellants was required to produce the psychometric testing documents to counsel for both parties. The 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. Judgment was entered in the action in July 2012. The temporary sealing order expired in September 2012. At some point, the psychometric testing documents marked as trial exhibits were returned to appellants’ counsel, the lawyer who filed them. The 2017 order amended the 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. In making the temporary sealing order permanent, the motion judge found that protecting the integrity of test procedures was an important interest, worthy of protection. He also 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.

HELD: Appeal allowed. As the psychometric testing documents were no longer in the court’s 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. The issue was whether the appellants or their counsel could use the documents for purposes other than this litigation or disseminate them to others. The motion judge erred in concluding there was an important public interest in the confidentiality of all the documents marked as exhibits without examining them and in failing to consider, as part of the proportionality analysis, the public interest in access to material that would facilitate cross-examination of the neuropsychologist in other proceedings. 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.

Elbakhiet v. Palmer, [2019] O.J. No. 2102, Ontario Court of Appeal, D.H. Doherty, J.M. Simmons and G.I. Pardu JJ.A., April 25, 2019. Digest No. TLD-May272019009