Estate Planning

C.L.B. v. J.B. - What Will the Court Consider When Determing Whether to Seal a Court File?

By Hull & Hull LLP

A recent decision of C.L.B. v. J.B.addressed when it is appropriate for a court file to be sealed. The case involved two minors who had lost a parent in the 9/11 terrorist attacks and had received victims' compensation. The court ordered that the funds be held in trust and set out a timeline for when the trustees would be required to pass accounts. 

When the trustees later applied to pass accounts, they also brought a motion that the court file be sealed so as to protect the minors' privacy. 

In considering the motion, Brown J. pointed to the importance of an open and transparent court system. This is not just because public policy favours openness as a way of encouraging the public's faith in the court system but in addition the public's right to obtain information about the court system is protected by s. 2(b) of the Charter of Rights and Freedoms. 

Brown J. found that a sealing order should only be granted in the following circumstances:

1.      When there is a serious risk  to an important interest and there is are no reasonable alternatives to preventing the risk; and

2.      When the benefits to granting the order outweigh the negative effects, having regard not just to the interests of the litigants but also the rights of the public. 

Ultimately, Brown J. found that in the circumstances a sealing order was unwarranted. Although the matter involved minors, he pointed out that legal proceedings frequently do and it is far from the norm for the court to order a file sealed. Moreover, he found that there was insufficient evidence before the court that there was a risk of serious harm if the order was not granted. 

He also expressed concern about the possible 'deleterious effects' that shielding settlements involving minors or matters involving a fiduciary's management of a minor's assets would have on the necessary transparency of a court's review.   

Finally, he found that a 'reasonable alternative' existed – rather than sealing the file, he ordered that the title of proceeding be amended and that any materials filed with the court list the trustees, the names of the trusts, and the minors using only initials rather than full names.  

Have a great day!

Megan F. Connolly 

Full post as published by Toronto Estate Law Blog on July 23, 2009 (boomark / email).