WEL Newsletter, Vol.8 No.8, November 2018



Whaley Estate Litigation Partners helps clients navigate dispute resolution throughout Ontario. We hope you enjoy our newsletter.
 
   


PART I: WEL NEWS

1. MONEY AND FAMILY LAW, SEPTEMBER 2018

 

Amanda Bettencourt's article 'Money and Family Law: Family Law Act Election: Delay Must be Incurred in "Good Faith"' was published in the September 2018, Issue 33-9 of Money and Family Law.

2. WHALEY/HULL WEBINAR SERIES, CLIENT CAPACITY: A CORPORATE LAWYER'S RETAINER, October 24, 2018
 
Kimberly Whaley and Ian Hull presented the 2nd of 4 Whaley/Hull Webinar series on Client Capacity: A Corporate Lawyer's Retainer on October 24, 2018. The next program is on November 28th, 2018
 
Please click on this link to register for the archived program. https://whaleyhullwebcasts.ca/?page_id=113

3. TORONTO POLICE SEMINAR, ELDER ABUSE CIVIL VS CRIMINAL REMEDIES, NOVEMBER 2, 2018

 
Daniel Paperny and Michael Marra spoke at the Toronto Police Services Seminar on Civil and Criminal Remedies, Elder Abuse on November 2, 2018

4. ESTATE PLANNING COUNCIL OF TORONTO, ELDER ABUSE NOVEMBER 6, 2018

 
Kimberly Whaley and Maureen Etkin spoke on Elder Abuse at the Estate Planning Council of Toronto on November 6, 2018.
 

5. BAYCREST FOUNDATION, ELDER ABUSE: CIVIL & CRIMINAL REMEDIES, NOVEMBER 7, 2018

 
Kimberly Whaley and Ian Hull spoke at the Baycrest Foundation Breakfast seminar on Elder Abuse: Civil & Criminal Remedies on November 7, 2018.


6. ONTARIO BAR ASSOCIATION PRESENTATION - TORONTO PUBLIC LIBRARY, AGINCOURT BRANCH, MAKE A WILL MONTH, NOVEMBER 14, 2018

 
Daniel Paperny was invited by Amy Clark, Media Relations & Communications Manager, to present on "Wills and Powers of Attorney" at the Toronto Public Library - Woodside Square Branch, organized by the Ontario Bar Association. Daniel focused his presentation on the importance of elder abuse awareness as well as how to prevent future litigation and associated costs through the use of power of attorney documents and proper Will planning.

7. ONTARIO BAR ASSOCIATION PRESENTATION - TORONTO PUBLIC LIBRARY, AGINCOURT BRANCH, MAKE A WILL MONTH, NOVEMBER 22, 2018

 
Matthew Rendely was invited by Amy Clark, Media Relations & Communications Manager, to present on "Wills and Powers of Attorney" at the Toronto Public Library - Agincourt Branch, organized by the Ontario Bar Association. Alexander focused his presentation on the importance of elder abuse awareness as well as how to prevent future litigation and associated costs through the use of power of attorney documents and proper Will planning.
8. NOVEMBER 28, 2018 - WEBINAR:  NAVIGATING YOUR RETAINER WHERE CLIENT CAPACITY IS AT ISSUE - REAL ESTATE LAWYERS

Have you registered yet? REGISTER NOW!


 
Kimberly A. Whaley & Ian M. Hull jointly present a LIVE WEBINAR SERIES.

Capacity considerations are a critically important aspect of a lawyer's practice, given our emerging social and demographic populations. This valuable live webcast will help you understand a lawyer's obligation, the rules upon which a lawyer's conduct will be examined, how to reconcile legislative and common law precedent, the legal abilities of attorneys and guardians, limitations on their powers, and the role of assessors and assessments. Join Ian Hull and Kimberly Whaley as they address the importance of capacity considerations in a lawyer's retainer.
4:45 - 6:00 pm Live Webcast

$75 + HST per session

This program qualifies for 0.5 Professionalism Hours and up to 0.75 Substantive Hours of CPD.

More information and registration at: whaleyhullwebcasts.ca

PART II: LAW REVIEW
(i)  PLAYING PEACEMAKER: WITH "NO LEGAL SOLUTION" IN SIGHT, ONTARIO COURT MANDATES THERAPEUTIC COUNSELING TO SAVE FEUDING FAMILY
By Daniel Paperny
 
INTRODUCTION
 
In Leelaratna v. Leelaratna[1] http://canlii.ca/t/hvgtc the ONSC ordered a broad intervention into the personal affairs and health care decisions of a family, whose relationships had seemingly deteriorated beyond repair. In the October 10, 2018 decision, Justice Audet - dealing with a family (specifically, a father-son relationship) fraught with emotional strain and discord - ordered that each of the family members attend at individual therapeutic counseling sessions, in a court-mandated attempt to salvage familial bonds.
 
The primary issues before the Court in this case were: (1) whether the court had jurisdiction to make a therapeutic order compelling the parties to attend counseling sessions and (2) whether such an order was appropriate in the circumstances of this case - especially considering that some of the family members did not consent to receiving the proposed counseling treatment. Justice Audet ruled in the affirmative on both of those issues, and ordered that each member of the family attend counseling, in an attempt to find peace between a deeply estranged father and minor-son.
 
The ruling can potentially have far-reaching consequences, not only in the context of family law proceedings but in any litigation where health care treatments are considered for individuals who do not or cannot consent to such treatments. The Leelaratna decision opens the door for Ontario courts to mandate certain treatments in select circumstances, regardless of consent. Interestingly, the Leelaratna ruling concluded that the mandated treatment was in the best interests of the child involved, yet the court did not consider the potentially deleterious effects of ordering that the child submit to such treatment against his express wishes.
 
In-Brief
 
The relationship between Mr. Leelaratna and his 12-year-old son, Udara, had become so dysfunctional that Udara refused to visit with his father, and in fact experienced mental trauma as a result of such parental visits, after Mr. Leelaratna and Ms. Leelaratna had separated. Family law proceedings were brought before the Court in an attempt to arrange visitation and access protocols for the Leelaratna Family, however, after several motions and orders issued, the Court could not find an agreeable arrangement, because Udara continued to show strong resistance to the visits with his father, and appeared to be suffering from severe anxiety as a result of those visits.
 
A registered psychologist, retained jointly by the parents, provided an assessment report to the Court, finding that both the mother and the father were at fault for the strained relations, and recommended that all three of the Leelaratnas attend various forms of therapeutic counselling in order to mend relations. Udara and his mother did not wish to attend any court-ordered counselling, while the father asked the court to order the parties to follow the psychologist's recommendations.
 
The Court applied a "large and liberal"[2] interpretation to its discretionary powers under family law legislation, and channeled its duty to promote the best interests of children, in ordering the parties to attend the recommended therapeutic counseling. The Court found it had jurisdiction to make such therapeutic orders in the Divorce Act and the Children's Law Reform Act, and deemed the recommended treatment to be in the best interests of Udara.
 
The ruling has the potential to significantly expand a Court's power to order litigants to receive certain types of health care, regardless of whether the parties consent, especially where the court deems such therapy to be in the best interests of the child or family. What was striking in this decision was that the Court found the recommended therapy sessions to be in the best interest of Udara (because the therapy sessions could potentially save Udara's relationship with his dad), despite the fact that Udara did not wish to attend the therapy sessions and did not wish to foster any relationship with his father. The Court did not consider whether such forced therapy could have an overall deleterious effect, and did not consider whether Udara's Charter rights to life, liberty and security of the person would be infringed if the boy was compelled to receive unwanted treatment.
 
Background Facts
 
Mr. Visita Leelaratna (referred to here as the "father") and Ms. Megha Leelaratna (referred to here as the "mother") were married in 1988 and had one child together, Udara, who was born in 2006 and was 12 years old at the hearing of this Sept. 2018 motion.
 
In May of 2017, the father left the country on a two-week trip, and when he returned to Canada, Ms. Leelaratna and Udara had moved out of the family home, and informed the father that the mother was separating from him.
 
The father and mother both retained separate counsel, and parenting visits were immediately set up between the father and Udara. However, after just two of those visits, the father was informed through counsel that Udara did not want to see him anymore, and that the visits had caused Udara extreme anxiety, stress and discomfort.
 
The father commenced an application seeking shared parental access among other relief. The parties brought several motions before Justice Audet, who was seized of the matter, seeking court-ordered access arrangements, but they were unable to reach sustainable arrangements, that met the needs and wishes of both parents and Udara.
 
The main issue was that Udara expressed intense resistance to any visitations with his father, and visits between the father and Udara were causing the child to suffer serious psychological distress. Udara was not only experiencing severe emotional anxiety as a result of visits with his father, but these issues had manifested in physical symptoms such as vomiting and irritable bowel syndrome.
 
Udara expressed a deep hatred for his father, because of the father's own stifling behavior, and Udara had accused the father of inflicting physical and emotional abuse upon him when Udara was a younger child. The father argued that Udara's attitude was stoked by the mother's negative influence over Udara.
 
Visitation arrangements had to be suspended because of Udara's growing resistance to those visits and the increasing distress which the visits were apparently causing him. When this motion was argued before Justice Audet on September 21, 2018, there had not been any visits between the father and son since May 15, 2018.
 
The Subject Motion
 
In advance of the September 2018 motion, Dr. Alex Weinberger, a registered psychologist, was retained jointly by the father and mother to prepare an assessment report pursuant to section 30 of the Children Law Reform Act[3](the "CLRA") which allows the court to appoint a professional to opine on the needs and best interests of a child in the context of a custody or access application.
 
Weinberger's report documented Udara's serious dislike for his father, and the ways in which the conduct of both the father and mother contributed to how "distressed and conflicted"[4] the relationship between the father and Udara had become.
 
Weinberger's report concluded that both the father and mother were to blame (although mostly the father) for the strained relationship between Udara and the father. The report went on to recommend that the father, the mother and Udara each attend some form of therapeutic counseling in order to help normalize the family's relations.
 
The father's position at the hearing was that the court had the jurisdictional authority to make therapeutic orders to compel the parties to attend the therapy sessions as recommended by Weinberger, he asked the Court to make the therapeutic orders and he sought reinstatement of his visitation rights with Udara.

The mother argued that the broken relationship between the father and Udara, and Udara's increasing stress and anxiety, were entirely due to the father's conduct. The mother opposed any order compelling herself or Udara to attend counselling; she argued the court had no authority with which to make such an order; and that Udara should not be forced to attend counselling sessions against his will - as this could result in even more psychological harm to him.
 
Ruling on the Issues
 
In her decision, Justice Audet noted that there was "simply no legal solution for this family" without some form of therapeutic assistance, and without therapeutic intervention, Udara's relationship with his father could be lost forever. Justice Audet observed that, as matters currently stood, visits between Udara and the father were harmful to all parties involved, and that therapeutic counseling was likely the only way to remedy that situation.
 
In order to salvage the father-son relationship (and the court repeatedly noted the importance of parental relationships for the short and long term health of a child) the court ordered that the parties engage in the therapeutic work necessary, with the goal of normalizing relations to the point where visits between Udara and the father could eventually resume.
 
In making the therapy orders, Justice Audet was primarily motivated by what she saw as the crucial nature of the father-son relationship, and the importance for Udara's long-term well-being to have some semblance of a relationship with his father, despite the fact that Udara expressed no interest in such a relationship at the time of hearing.
 
There were three primary issues before the Court in making its decision on the therapeutic orders: (1) did it have jurisdiction to make such an order? (2) was the consent of any or all of the parties required to make such an order? (3) was such an order appropriate in the circumstances?
 

a. Does the ONSC Have Jurisdiction to Make a Therapeutic Order?

 
The Court observed that there had been past judgements in Ontario where courts did find jurisdiction to make therapeutic orders[5], and there were a minority of cases where the courts found that it did not have jurisdiction[6].
 
Upon review of the case law and governing family law legislation, Justice Audet concluded that the Court did have jurisdiction to order that litigants attend at therapeutic counseling sessions, pursuant to sections 28(1)(b) and (c) of the CLRA and sections 16(1) and (6) of the Divorce Act[7], which respectively read as follows:
 
Children's Law Reform Act
28 (1) The court to which an application is made under section 21,
...
 
(b) by order may determine any aspect of the incidents of the right to custody or access; and
 
(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,
 
(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,
 
(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,
 
(iii) prohibiting a party from changing the child's residence, school or day care facility without the consent of another party or an order of the court,
 
(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,
 
(v) requiring the delivery, to the court or to a person or body specified by the court, of the child's passport, the child's health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,
 
(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or
 
(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.
 
Divorce Act
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. ...
 
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
 
Justice Audet held that any therapeutic order made pursuant to these statutory powers should be made in the best interests of the child involved. Audet went on to hold that there should be "a large and liberal interpretation of the statutory and regulatory powers conferred upon the courts to make a wide variety of orders with regards to parents, including therapeutic orders", in order to allow the courts to uphold its duty of promoting the best interests of children. On therapeutic orders specifically, the Court noted that they can be "very effective tools to help the family move forward ... and help children transition through the emotional turmoil"[8].
 

b. Does the Health Care Consent Act require that the parties consent to the therapy treatment?

 
Section 10 of the Health Care Consent Act[9](the "HCCA")presented a hurdle for the Court in making the therapeutic orders, because neither the mother nor Udara consented to the proposed therapy treatments.
 
Section 10 of the HCCA states that "a health practitioner who proposes a treatment for a person shall not administer the treatment ... unless (a) ... the person has given consent; or (b) ... the person is incapable".
 
Neither Udara nor the mother consented to the proposed therapeutic treatments. However, Justice Audet found that the proposed therapy was not "a treatment" pursuant to the definition in the HCCA, and therefore s. 10 did not apply to this circumstance and the individuals' consent was not required.
 
The HCCA definition of "treatment" reads, in part, as follows:
 
"treatment" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include, ...
(g) a treatment that in the circumstances poses little or no risk of harm to the person,
 
Justice Audet noted that the HCCA's definition of a "treatment" excludes any treatment that posed little or no risk of harm to the proposed patient. Audet went on to find that most therapeutic counseling (including those proposed by Weinberger) presented little or no risk to the proposed patient, and that in the case of child therapy, the real risk of harm was found in NOT administering the proposed therapy treatment. There was little, if any, attention paid to the possibility that administering the proposed therapy against the wishes of Udara could have a negative effect on the boy and his relationship with his father.
 
The judge concluded that the specific therapies proposed by Dr. Weinberger posed little or no risk to Udara, the mother or the father, and therefore the HCCA did not apply and consent was not required.
 

c. Is a therapeutic order justified in the circumstances of this case?

 
Justice Audet observed that Udara's estrangement from his father was caused by an array of factors, most notably the father's own harmful behavior.  
 
However, the Court went on to find that the only conceivable way in which a positive relationship between Udara and the father could be salvaged was by forcing the parties to attend therapeutic counseling.
 
Despite the fact that Udara himself was not receptive to the idea of fostering a relationship with his father, and was similarly disinterested in attending counseling, the Court ruled that Udara attend the counselling sessions anyway.
 
In a somewhat curious turn of reasoning, Justice Audet held that the Udara "needs to have a voice in this process, but not necessarily a choice ... I am not sure that at twelve years of age he is capable of fully grasping the long-term repercussions of terminating his relationship with his father."[10] Basically, the Court here noted its judicial responsibility to make rulings that were in the best interests of the child, however it held that in this case the child, Udara, did not know what was best for himself, and ordered that Udara attend the recommended therapeutic counselling with a goal toward normalizing relations with his father, despite the fact that Udara showed no desire to do so. This was especially notable given that, for much of her reasons, Justice Audet noted that "Udara is a very bright and articulated twelve year old boy"[11].
 
In conclusion, the Court ordered that Udara, the mother and the father all attend the counselling sessions that had been recommended by Dr. Weinberger, that Udara retain his own legal counsel in the proceedings, and that a meeting could be arranged between Justice Audet, Udara and Udara's lawyer, to discuss the judge's decision to order the counselling sessions and the reasons for same. Visits between Udara and the father were not to resume until after the parties had attended counselling and relations had eased.
 
Takeaway
 
The ruling in Leelaratna provides a telling indication of the Court's vast discretionary powers to make orders in family law proceedings, and potentially in other contexts as well, particularly as such orders relate to health care and counselling treatment of the litigants and especially where such care is found to be in the best interests of the child involved.
 
Pursuant to the noted provisions in the Divorce Act and the CLRA, and the Court's broad interpretation of same in this case, the Court has a wide power to make orders related to health care decisions (or other orders with the goal of improving familial relations) where the Court deems such an order to be in the best interests of the child or family. Even when the parties do not wish to submit to the care/proposal.
 
By finding that the therapeutic counselling treatments proposed by Dr. Weinberger did not fall within the definition of "treatment" in the HCCA (because Justice Audet deemed such treatments to be harmless) the Court in Leelaratna opened the door for courts in Ontario to make orders forcing parties to receive similar health care treatment without the parties' consent, in family law matters and potentially others.
 
This decision can have far-reaching effects in the context of estate litigation as well, or any proceeding where health care treatments are being sought for a party who does not or cannot consent to receiving such treatment. For example, in analogous estates law circumstances, where attorneys and guardians are contemplating 'treatment decisions' in their capacity as a substitute decision maker where the subject person is unable or unwilling to consent.
 
Interestingly, the Court in Leelaratna did not consider that subjecting a patient to therapy treatment against their wishes could be harmful to the unwilling patient in and of itself. The Court did not appear to take into account the possibility that unwanted therapy sessions could in fact have a negative impact on Udara's relationship with his father (it could lead Udara to resent his father or blame his father for interfering in his life) rather than a positive impact. Further, the Court did not consider whether compelling a person to undergo treatment such as therapeutic counselling against that person's will could be interpreted as a violation of that individual's Charter rights of life, liberty and security of the person.
 
In addition, the Leelaratna judgement is noteworthy because, while the decision goes out of its way to champion the "best interests, protection and well-being of children"[12] as a central responsibility of the courts, the decision can be interpreted as running contrary the well-being of Udara. The child in this case expressed a clear desire to remain separate from his father, it was blatantly obvious that visits with his father were causing Udara immense difficulty, and Udara did not wish to engage in counselling with the ultimate goal of reconciling with his father (whom, allegedly, had abused Udara as a child). Even Dr. Weinberger's assessment report found that "the potential repercussions on [Udara's] mental health over the long term, should conflict [with the father] persist, could not be understated"[13]. There was clear danger to Udara in continuing his unhealthy relationship with his father. However, despite all that, Justice Audet still ordered that Udara engage in therapeutic counselling with the goal of eventually reconciling with the father, against Udara's own wishes. Justice Audet justified this by claiming that perhaps Udara, a 12-year-old boy, did not know what was best for him, and that a future relationship with his father (even one that had been painful for Udara to endure up until this point) would be beneficial for Udara's long-term well-being.
 
Such a decision seems to suggest that, in circumstances like these, the Court may step in and play the role of counsellor and order what the court feels is in the best interests of children, even when such an order is contrary to the express feelings of the child him/herself.


[1] 2018 ONS 5983
[2] Ibid. para. 52
[3] R.S.O. 1990, c. C.12
[4] Leelaratna, para. 28
[5] Leelaratna, para. 42
[6] Ibid. para. 41
[7] R.C.S. 1985, c. 3
[8] Leelaratna, para. 52
[9] S.O. 1996, c.2
[10] Leelaratna, para. 94
[11] Ibid, para. 93
[12] Ibid. para. 80
[13] Leelaratna, para. 28
(ii)  COURT DENIES REQUEST FOR SEALING ORDER AND REQUIRES PLAINTIFF TO SERVE MOTION MATERIALS ON OPPOSING PARTY IN SETTLEMENT APPROVAL MOTION UNDER RULE 7.08
By Kimberly Whaley
 
In a recent case from Ottawa, Dickson v Kellett, 2018 ONSC 4920, http://canlii.ca/t/htl3h the Court was critical of, and denied, a plaintiff's request for an order dispensing with the requirement for service of motion documents on the opposing party and a sealing order in the context of a motion for court approval of a settlement reached on behalf of a minor under Rule 7.08 of the Rules of Civil Procedure.
 
Context: Requirement for Court Approval
 
Rule 7.08 of the Ontario Rules of Civil Procedure provides that "no settlement of claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge." Disability is defined in the Rules to include a minor.
 
The requirement that settlements reached on behalf of parties under disability be approved by the Court is derived from the Court's paren patraie ("father of the people") jurisdiction.   The overriding rationale behind paren patraie is to ensure that decisions made on behalf of incapable people be in their "best interests", as the Ontario Court of Appeal explained in Wu Estate v. Zurich Insurance Co.:
 
The parens patriae jurisdiction is of ancient origin and is "founded on necessity, namely the need to act for the protection of those who cannot care for themselves...to be exercised in the "best interest" of the protected person...for his or her "benefit or welfare".
[1]
  
On such a motion or application, Rule 7.08(4) sets out the material required for court approval, including: an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement; an affidavit of the lawyer acting for the litigation guardian setting out the lawyer's position in respect of the proposed settlement; if the person under disability is a minor who is over the age of sixteen years, the minor's consent in writing (unless the judge orders otherwise); and a copy of the proposed minutes of settlement.
 
Sometimes, due to the privileged information that must be provided in the motion material, plaintiff's counsel will seek a sealing order and/or an order dispensing with service on the opposing party.
 
Dickson Case: The Plaintiff's Request
 
The minor in Dickson was involved in a motor vehicle accident. A claim was started, and a settlement was reached with the defendant. The Court approved the settlement but denied the ancillary relief requested: an order dispensing with the requirement for service of the relevant material on the opposing party and a sealing order.
 
Justice Corthorn observed that the sole ground identified in support of the ancillary relief was that the affidavits included information "subject to one or the other of solicitor-client privilege and 'litigation-settlement' privilege." Justice Corthorn noted that the plaintiffs did not "define what is meant by the latter form of privilege." The only example provided of privileged information was where counsel addressed the strengths and weaknesses of the minor's case.
 
The plaintiffs argued that the court would "run afoul of the intended purpose of r 7.08 if the moving party is required to disclose the frailties of their case to the responding party." [2]
 
Analysis
 
The decision opens with a quote from the Supreme Court of Canada case of Vancouver Sun (Re), 2004 SCC 43 on the 'open court principle' in Canada, noting that "openness" is "necessary to maintain the independence and impartiality of the courts".
 
Justice Corthorn goes on the examine the two requests with the 'open court principle' in mind:
 
Order Dispensing with Service of Documents
 
Justice Corthorn referred to the Rules of Civil Procedure which require a notice of motion to be served on an opposing party unless there is an exception provided in the Rules (where impracticable or unnecessary or where delay encountered for service to be effected may result in serious consequences). Her Honour concluded that the Rules do not otherwise include an exception to the requirement for service that in any way encroaches on the open court principle. [3]
 
Sealing Order
 
Section 137(2) of the Courts of Justice Act ("CJA") provides the statutory authority for the court to grant a sealing order. The CJA does not set out the criteria that must be met for such an order to be made. Such criteria can be found in the Supreme Court of Canada case Sierra Club of Canada v Canada (Minister of Finance) 2002 SCC 41, [2002] 2 SCR 522:

( a)  such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
 
(b)  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 in this context includes the public interest in open and accessible court proceedings.
 
Citing cases since Sierra Club - Foss v Foss[4] and D.B. Trust (Trustees of) v JB (Litigation Guardian of)[5] - Justice Corthorn noted that these cases demonstrate the reluctance of the court to depart from the open court principle.
 
A statement in counsel's supporting affidavit that disclosure of the supporting materials would infringe on solicitor-client privilege is generally insufficient to support a sealing order being made: "[c]ounsel, both plaintiffs' and defence, need reminding of the criteria to be met before relief will be granted that in any way encroaches on the open court principle."
 
Justice Corthorn concluded that:
 
[42] For the majority of settlement approval motions, counsel are in a position to provide the court with the requisite evidence without an unwarranted incursion into either solicitor-client or litigation privilege. The further along the proceeding has reached when the settlement is negotiated, the greater the amount of information available to the parties to assess their respective cases. That information comes from one or more of documentary, oral, and medical discovery, mediation, and a settlement conference. The issues in a case, and the relative strengths and weaknesses of each party's case, are typically not a surprise to the parties and their respective counsel.
[43] Something more than the potential incursion into solicitor-client or some other form of privilege is required to support a request for an order dispensing with service of the relevant documents on the opposing party.
 
[44] The test for a sealing order is not easily met. If premised solely on the ground that the supporting materials include information that is subject to a claim of privilege, a request for a sealing order is unlikely to succeed.
 
[45] The satisfaction of the evidentiary requirements on a settlement approval motion-even if requiring some incursion into privileged information-is balanced against:
 
a)    The obligations of the court in fulfilling its parens patriae jurisdiction;
 
b)    The public interest in knowing that the court supervises settlements reached on behalf of minors and persons under a disability; and
 
c) Transparency in the proceeding, including the settlement approval process.
. . .
 
[47] The evidence in support of the relief requested is insufficient; . . .
 
Takeaway

Before seeking a sealing order, or an order dispensing with service in such a situation, it would be wise to include sufficient reason and rationale as to why such relief should be granted. While this appears to be a unique case where this ancillary relief was denied, it is clear that Justice Corthorn placed considerable weight on our 'open court principle' in coming to this conclusion.


[2] Dickson v Kellett, 2018 ONSC 4920 at para 23.
[3] At para. 13.
[4] 2013 ONSC 1345.
[5] (2009) 97 OR (3d) 544(SCJ)

PART III: UPCOMING EVENTS
Whaley/Hull Webinar Series
November 28, 2018
Client Capacity and the Corporate Lawyer's Retainer
December 12, 2018  
Live Webcast presented by Ian Hull and Kimberly Whaley

STEP - Mental Capacity Special Interest Group, London, UK
Putting the Lawyer at the Heart of Capacity Assessments: Examining the Role of the Lawyer in Determining Capacity
December 7, 2018     
Speaker: Kimberly Whaley

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
February 15, 2019
Speaker: Kimberly Whaley

Osgoode Professional Development
2019 Elder Law - Marriage Contracts; conflicts in Blended Families: Sibling Struggles, Predatory Marriages and Family Meetings
February 26, 2019
Speakers: Kimberly Whaley and Professor Albert Oosterhoof
 
Osgoode Professional Development
Powers of Attorney and Guardianship: Non-contentious and Contentious Matters
April 9, 2019
Speaker: Kimberly Whaley
 
Cambridge Forum
Steering Committee Member: Kimberly Whaley
April 14-16, 2019
 
Osgoode Professional Development
Passing of Fiduciary Accounts
April 30, 2019
Chair: Kimberly Whaley Speakers: Professor Albert Oosterhoof, Nancy Patrick, Birute Lyons and Ian Hull

Northwind Professional Institute
High Net Worth Forum
May 1-3, 2019
Presenter: Kimberly Whaley
 
STEP Premier Sponsorship Education Session
Short Case Study Presentation
May 22, 2019
Presenter: Kimberly Whaley

GTA Accountants and GTA Finance Network

Elder Abuse
October 1, 2019
Speaker: Kimberly Whaley
 

Toronto Police Seminar

Civil and Criminal Remedies, Elder Abuse
November 1, 2019
Speaker: Kimberly Whaley
 

Toronto Police Seminar

Civil and Criminal Remedies, Elder Abuse
December 6, 2019
Speaker: Kimberly Whaley

PART IV: RECENT BLOG POSTS
Court Denies Motion to Remove Opposing Counsel in Estate Dispute: Gloger v Evans

Diminished Ability to Communicate? Or, Diminished Decisional Capacity? - Mills v Radons
 

Re Wall Estate: Notice of Objection to Passing of Accounts Not Barred by Limitation Period

What Is a Will and What Is the Role of a Court of Probate - Update

Civility and Professionalism

On Guardianship Applications: Be Sure to 'Plan Ahead'

Blank Pages, Tractor Fenders and Other Strange but Valid Holographic Wills

The Meaning of "Survival"

PART V: CONNECT WITH WEL
Newsletter Archive
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