Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of an Ontario sealing order and whether it extends to secondary documents that repeat already-sealed confidential information.
• Question of whether a sealing order can effectively bind and restrict use of materials accessed from a public court file before the order was formally signed and entered.
• Treatment of inadvertent disclosure of confidential information in a public motion record and whether confidentiality can be “restored” after such a slip.
• Extent to which sealing orders and protective orders bind non-parties and out-of-province litigants who lawfully obtained materials from the public record.
• Evaluation of whether the applicant’s counsel acted properly on discovering potentially sealed information and whether they attempted to exploit an obvious slip.
• Costs discretion where the technically successful party’s own inadvertence and procedural choices created the circumstances necessitating the application.

Background and related proceedings

Michael Dean Jackson is the proposed representative plaintiff in a class action filed in the Supreme Court of British Columbia against multiple OpenAI entities. That proceeding (the Proposed BC Class Action) alleges claims related to OpenAI’s activities and runs in parallel to an Ontario action brought by media organizations, Toronto Star Newspapers Limited v. OpenAI Inc., on the Ontario Commercial List. The OpenAI entities challenged the Ontario court’s jurisdiction in the media action. In support of that Ontario jurisdiction motion, the parties exchanged affidavits, conducted cross-examinations, and assembled a motion record for the hearing, which took place on September 10, 2025. Before that hearing, the Ontario court had released reasons on August 14, 2025 granting a sealing order over specified confidential information belonging to OpenAI, particularly material contained in the affidavit of Shantanu Jain sworn April 16, 2025. However, the formal sealing order was not signed, issued, and entered until December 5, 2025, and was later amended on December 16, 2025.

The sealing order and the inadvertent disclosure

The August 14, 2025 reasons led to what became the Original Sealing Order. That order identified several affidavits and cross-examination transcripts, including the Jain Affidavit, as containing confidential information that was to be sealed in their unredacted form. Public redacted versions were to be filed, with specific paragraphs—such as paragraphs 17 to 19 of the Jain Affidavit—redacted in the public court record. The sealing language was broad: it not only sealed the identified affidavits in their non-redacted form, but also “any reference to the redacted information therein in subsequently filed Court documents.” The plaintiffs in the Ontario media action later served and filed an expert affidavit by Michael Candore dated May 30, 2025. Exhibit 1 to this affidavit contained paragraph 81, which referred back to, and effectively replicated, confidential information sourced from paragraph 19 of the Jain Affidavit. When the public version of the Ontario motion record was assembled and filed, paragraph 19 of the Jain Affidavit was in fact redacted; however, paragraph 81 of Exhibit 1 to the Candore Affidavit was not, leaving that confidential information visible in the public record. This omission was an inadvertent redaction error: the Candore material was a secondary source that repeated information the court had already ruled must remain under seal. The Amended Sealing Order, finalized on December 16, 2025, did not change the underlying decision; it simply updated paragraph 3’s redaction list to add paragraph 81 of Exhibit 1 to the Candore Affidavit (and a couple of other stray references) so that all references to paragraph 19 of the Jain Affidavit were properly captured.

How Jackson’s counsel obtained and attempted to use the Candore Affidavit

On September 8, 2025—after the sealing reasons but before any sealing order had been signed and entered—Jackson’s lawyers in the BC class action obtained a copy of the publicly filed motion record from the Ontario court file. That public record contained redacted versions of the sealed materials, but it also contained the unredacted Candore Affidavit, including paragraph 81 of Exhibit 1. Jackson’s counsel did not immediately file this material in the BC proceeding. Instead, they later sought to rely on it during a December 5, 2025 hearing in the BC court on a sealing motion brought by the OpenAI entities (the BC Sealing Order Motion). Jackson’s broader position in BC was that a sealing order was inappropriate in part because some of the information OpenAI sought to seal had already entered the public domain. As a concrete example of this “already public” material, counsel pointed to paragraph 81 of Exhibit 1 to the Candore Affidavit and offered to hand up the document to the BC judge, Justice Brongers. At that point, OpenAI’s counsel objected immediately, stating that the Candore Affidavit should never have been publicly filed because it disclosed information that had already been sealed pursuant to the Ontario sealing reasons. They advised the BC judge and Jackson’s counsel that they would take immediate steps in Ontario to rectify this inadvertent public disclosure. Justice Brongers declined to accept the evidence and adjourned the BC sealing motion. Thereafter, OpenAI conducted a review of the Ontario public motion record, identified the few unintended public references to the confidential Jain Affidavit information, and successfully sought the Amended Sealing Order from the Ontario court on December 16, 2025. Jackson and his counsel were not notified or heard on that amendment request.

The application before the Ontario court

Faced with the amended order and uncertainty about whether he could use the Candore materials in the BC class action, Jackson applied to the Ontario Superior Court (Commercial List) for declaratory relief and directions. In his factum, he effectively asked the court to determine three core questions: whether the Original and Amended Sealing Orders applied to the Candore Affidavit; whether those orders operated only prospectively or also affected material already extracted from the public record; and to what extent the orders bound non-parties (like Jackson) who, acting in good faith, had accessed the materials before the orders were signed or amended. The OpenAI entities framed the issue more bluntly: they asked whether the court should “sanction and enable the exploitation of an inadvertent slip” in order to defeat their confidentiality claims in the BC sealing motion. Both sides accepted that the sealing orders were valid and binding; the disagreement lay in the scope of those orders and their effect on a third-party litigant in another province who had lawfully obtained the public motion record months earlier.

Interpretation of the sealing order’s scope

Justice Kimmel’s analysis started from the wording and structure of the sealing order. Paragraph 2 of the sealing order listed specific affidavits, including the Jain Affidavit, and provided that the non-redacted versions of those documents—and any reference to the redacted information in subsequently filed court documents—were sealed and not to be disclosed. Paragraph 3 specified particular paragraphs to be redacted in the public versions, and the Amended Sealing Order added paragraph 81 of Exhibit 1 to the Candore Affidavit to that list. On a straightforward reading, the court held that the source of the confidential content was paragraph 19 of the Jain Affidavit, and that any later document that referred to that redacted information fell within the sealing regime. The Candore Affidavit, particularly paragraph 81 in Exhibit 1, was a secondary document that relied on, and reproduced, what had already been designated confidential. Jackson’s argument that the order was document-specific—that only the expressly listed affidavits were protected, and not secondary references like Candore’s—was rejected as too narrow and out of step with the purpose and context of the sealing regime. Applying a contextual, purposive approach, the court found no ambiguity: the intent was to protect the specific confidential information and any reference to it in later court documents, not to confine protection rigidly to a closed list of document titles.

Retroactivity and restoring confidentiality after an inadvertent public filing

The more difficult question was what to do about the fact that Jackson’s counsel had lawfully obtained the unredacted Candore Affidavit from the Ontario public court file before the Original or Amended Sealing Orders were signed. Justice Kimmel acknowledged that the amendments could not retroactively change what actually sat in the court file in September 2025. Nonetheless, she distinguished this scenario from cases where information, once disclosed, had been widely used (such as police having already exploited improperly seized video evidence), making it “too late to put the genie back in the bottle.” Here, although Jackson’s lawyers had seen the confidential information, they had not used or relied on it in any substantive way: it had not been filed in BC materials, and Justice Brongers refused to accept it when they first attempted to hand it up at the December 5 hearing. The Ontario court drew on case law about inadvertent disclosure of privileged documents. Those authorities recognize that privilege or confidentiality need not be treated as permanently waived where the disclosure was inadvertent, not intended or authorized, and corrected promptly once discovered. In that line of reasoning, confidentiality can be “restored” if appropriate steps are taken to contain and remove the material and to restrict its use going forward. Justice Kimmel found that OpenAI had never intended to waive confidentiality; the lapse arose from a redaction oversight in the plaintiffs’ expert materials, not any deliberate disclosure by OpenAI. Once alerted in the BC hearing, the respondents moved quickly to fix the problem by seeking the Amended Sealing Order and replacing the Ontario public record with corrected, properly redacted versions. Jackson’s counsel, for their part, acted responsibly: they did not file the material, they accepted interim confidentiality measures, and they sought directions from the issuing court. In these circumstances, the court held that the confidentiality of paragraph 19 of the Jain Affidavit and its repetitions in the Candore Affidavit could be, and had been, effectively restored. The Amended Sealing Order had retroactive effect from the date it was signed in the sense that, from that point forward, all references to the sealed Jain Affidavit material—wherever they appeared—were once again subject to the sealing regime, even if there had been a brief interval when one such reference was public.

Binding non-parties and third-party access to court records

Jackson’s central concern was whether, as a non-party to the Ontario action, he remained free to use material he had acquired lawfully and in good faith from the Ontario court file before any formal sealing order existed. He relied on authorities, including Chellappa v. Kumar, where a third-party employer who had already obtained and relied on family law documents was not retroactively bound by a later mutual conduct order restricting dissemination. Justice Kimmel accepted that Jackson had no notice of a formal sealing order when he accessed the Ontario file in September 2025 and that he did nothing improper in acquiring those materials. But she distinguished the BC authority on a key factual point: in Chellappa, the third party had already used and acted upon the documents before any restriction was ordered; here, Jackson had not taken consequential steps based on the confidential information. Instead, he refrained from filing it, offered to treat it as confidential pending clarification, and explicitly sought the Ontario court’s direction. Against that background, the court held that once the Amended Sealing Order was signed, issued, and entered, it became binding on all persons with notice, including third parties such as Jackson. Equity did not need to intervene to punish or restrain him; rather, the statutory and inherent powers of the court were enough to preserve the restored confidentiality. Jackson was therefore not at liberty to use or rely on the Jain-derived Confidential Information in his BC class action. The court emphasized that Jackson was not a “bona fide purchaser for value without notice” of some property right, and he had taken no irrevocable steps on the strength of the material. His status as a good-faith, law-abiding recipient was acknowledged, but that position did not confer a continuing right to deploy confidential content that the issuing court had validly ordered to remain sealed.

Evaluation of conduct and allegations of exploiting an inadvertent slip

OpenAI argued that Jackson was attempting to “exploit” an obvious slip in the Ontario public record in order to undermine OpenAI’s confidentiality claims in BC. Justice Kimmel rejected this characterization in strong terms. Jackson’s counsel had lawfully obtained documents from the Ontario public file, had not disseminated them, and—once alerted to the confidentiality concern—had refrained from filing them and proactively sought the court’s guidance. The suggestion that they should have independently discovered the redaction error and immediately alerted the respondents was described as “perplexing,” particularly in light of the fact that the respondents themselves had not noticed the error for months. The court also dismissed as unfounded the OpenAI entities’ allegations that Jackson’s lawyers had breached professional conduct obligations. Far from criticizing them, Justice Kimmel noted that they behaved precisely as the court would expect in a difficult and unusual situation created by the timing and handling of the sealing orders and by OpenAI’s inadvertent filing of the unredacted material.

Costs and overall outcome

On the merits, the court dismissed Jackson’s application. It confirmed that the sealing regime in Ontario covers the confidential information in paragraph 19 of the Jain Affidavit and any references to that information in later court documents, including paragraph 81 of Exhibit 1 to the Candore Affidavit. It further held that, although Jackson’s acquisition of the document from the public record was lawful at the time, the confidentiality has now been restored and he is not permitted to file or rely on that Confidential Information in his BC class action. OpenAI was therefore the successful party on the application. On costs, however, the court exercised its discretion against awarding the usual partial indemnity costs to the successful party. Both sides filed substantial costs outlines, but Justice Kimmel concluded that it was the OpenAI entities’ own inadvertent conduct and procedural choices—delayed formalization of the sealing order and failure to catch the redaction error—that made the application necessary. While she declined to award costs against OpenAI, she also refused to order costs in its favour, directing that each side bear its own expenses for the application. As a result, OpenAI succeeded in upholding the breadth and binding force of the sealing order, but there was no monetary award, costs order, or damages granted in favour of any party, and the total amount ordered in favour of the successful party is therefore not determinable because it is effectively zero.