When addressing proportionality, motion judge should have considered public interest

Ontario civil | Civil Practice and Procedure | Discovery | Medical examination

Doctor examined party in earlier proceedings, and certain materials were ordered produced, mostly due subject to temporary sealing order. Some years later, it became apparent that counsel for defendant in unrelated proceeding was in possession of materials, and intended to use them in cross-examination of same doctor. Defendants successfully brought motion for sealing order regarding neuropsychological manuals and testing materials belonging to doctor. Plaintiff appealed. Appeal allowed. Without examining exhibits, motion judge could not assess extent to which test security would be put at risk by public disclosure or whether test security was truly factor in relation to all material marked as exhibits. Motion judge failed to consider, as part of proportionality analysis, public interest in access to material that would have facilitated cross-examination of doctor in other proceedings. Question for motion judge was whether salutary effects of confidentiality order outweighed deleterious effects, including impact on open courts principle. When addressing proportionality, motion judge should have considered public interest in litigants’ access to material that facilitated cross-examination of expert witness.

Elbakhiet v. Palmer (2019), 2019 CarswellOnt 6147, 2019 ONCA 333, Doherty J.A., Janet Simmons J.A., and G. Pardu J.A. (Ont. C.A.); reversed (2018), 2018 CarswellOnt 4261, 2018 ONSC 105, Martin James J. (Ont. S.C.J.).

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