Executive Summary: Key Legal and Evidentiary Issues

• Scope of the open court principle versus privacy interests in educational, medical, and disability-related records filed on judicial review.
• Application of the Sherman Estate v. Donovan three-part test to determine whether sealing is justified to protect a litigant’s biographical core and human dignity.
• Differentiation between deeply personal health and psychoeducational information and academic transcripts for the purpose of sealing orders.
• Interaction between statutory privacy protections under FIPPA and the common law/open court principle when records are before a court.
• Judicial scrutiny of party-consented or jointly drafted sealing orders, with the court independently narrowing relief where the test is not met.
• Management of ongoing judicial review proceedings (including amendment of the style of cause and scheduling) after a partial sealing order is granted.

Background and context of the dispute
This case arises from an application for judicial review brought by Simra Askary against the Information and Privacy Commissioner of Ontario (IPC) and Toronto Metropolitan University (TMU). The underlying administrative dispute concerns TMU’s refusal to release certain documents and the IPC’s decision to close the related access-to-information file because it concluded that Ms. Askary’s father lacked proper authorization to act on her behalf. The endorsement before the Divisional Court does not resolve the judicial review itself; instead, it addresses a discrete procedural matter: whether a sealing order should be granted over sensitive documents in the IPC’s record of proceedings.

The sealing order request and records at issue
The IPC initially sought a sealing order in relation to specific documents contained in its record of proceedings, and ultimately the IPC and Ms. Askary agreed on terms for a proposed order. The draft order would have sealed five categories of records: (a) a psychoeducational report about Ms. Askary dated June 2, 2016; (b) her Individual Education Plan dated November 19, 2020; (c) a medical note from her family physician dated February 19, 2025; (d) a medical note from her clinical and counselling psychologist dated March 5, 2025; and (e) her Toronto Metropolitan University student transcript dated May 5, 2025. In addition, the draft order required that any portions of documents in the record containing personal and identifying information be sealed, including her date of birth, student numbers and other unique identifiers, signature images, medical, disability and mental health information, academic grades and transcript line items, and personal addresses or telephone numbers other than what appears on the Notice of Application. TMU took no position on the sealing motion. The IPC pointed to its statutory confidentiality obligations under Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA), including its duty of confidentiality in section 55(1), and noted that the educational materials might constitute personal information under that statute. However, the IPC expressly declined to take a position on whether the legal test for a sealing order was met in this case.

Legal framework: open court principle and Sherman Estate test
Justice Brownstone identified the governing legal framework as the open court principle and the three-part test articulated by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25. The Court in Sherman Estate emphasized that there is a strong presumption in favour of open courts, and that inconvenience, embarrassment, or intrusion into private lives, while often a consequence of court access, are generally insufficient to displace that presumption. The person seeking a sealing order bears a heavy onus to show, first, that openness presents a serious risk to an important public interest, such as human dignity; second, that the order sought is necessary to prevent that risk; and third, that the benefits of the restriction on openness outweigh its negative effects. In summarizing Sherman Estate, the endorsement underscores several key principles: that protecting human dignity from a serious risk can qualify as a competing interest of public importance; that courts may protect dissemination of highly sensitive information that touches on the core of an individual’s personal life and dignity; that cases where dignity is truly at risk are limited; that the concern may centre on loss of control over a highly sensitive aspect of identity that was not consciously chosen to be shared; and that the information must relate to the person’s “biographical core.”

Positions of the parties on the sealing request
In her submissions, Ms. Askary argued that the Sherman Estate test was satisfied. She contended that a sealing order was necessary to preserve the fairness and integrity of her judicial review application, and to protect her dignity, privacy, and access to justice. According to her, disclosing the educational and medical materials without critical contextual information—such as the denial of accommodations—would create a misleading and harmful narrative about her abilities and academic history. She maintained that the records cannot be meaningfully interpreted in isolation from her personal characteristics and the accommodation context. She further noted that the judicial review is not a dispute about her academic merit, so public access to the underlying academic materials would not assist in a proper understanding of the legal issues before the court, while the prejudice to her would be long-lasting. The IPC, while acknowledging its statutory privacy and confidentiality regime under FIPPA and recognizing that the records likely contain personal information, took no position on whether the Sherman Estate criteria were actually met as a matter of law. TMU, as the affected educational institution, also took no position, leaving the court to assess the draft order on the basis of the legal test and the applicant’s submissions.

Court’s analysis of health, psychoeducational, and personal data
Justice Brownstone held that almost all of the categories of information identified in the draft order—other than the transcript—do meet the Sherman Estate threshold for restricting openness. The psychoeducational report, the Individual Education Plan, and the two medical notes all contain “intimate, personal and confidential health and biographical information” about the applicant and plainly fall within the notion of her “biographical core.” The same is true of the specified personal identifiers such as date of birth, disability and mental health information, and personal contact details. The judge accepted that disclosure of these materials would create a serious risk to the protection of Ms. Askary’s dignity and personal autonomy. The court also found that the requested sealing order in respect of this biographical-core information was necessary to prevent that risk and was drafted in a narrow and focused manner, targeting only the most sensitive material rather than the record as a whole. Given the nature of the information, the importance of the dignity interest at stake, and the tailored wording of the order, Justice Brownstone concluded that the benefits of sealing this set of records and data outweigh the adverse effects on openness and public access to the court record.

Different treatment of the academic transcript
By contrast, the judge reached a different conclusion regarding the TMU student transcript. Although the applicant argued that its disclosure would lead to misunderstanding and stigmatization—especially if released without the full context provided by the medical and psychoeducational reports—Justice Brownstone held that the transcript does not fall within the same “biographical core” category as the health and disability records. The court characterized her concerns about release of the transcript as primarily relating to embarrassment and distress, which, under Sherman Estate, do not override the open court principle. The endorsement acknowledges that the transcript may constitute personal information under FIPPA but stresses that statutory characterization alone does not satisfy the Sherman Estate test for sealing in the judicial process. Nor is this a situation where failure to seal the material would pre-determine the merits of the judicial review or render it effectively moot, as may occur in some cases involving the IPC. As a result, the request to seal the transcript itself and related transcript line items is refused, even though the other highly sensitive materials and identifiers are sealed.

Outcome, successful party, and monetary consequences
Ultimately, the Divisional Court grants a partial sealing order. It approves sealing of the psychoeducational report, the Individual Education Plan, the two medical notes, and specified personal and biographical details, but declines to seal the university transcript. The order is also amended, in accordance with the parties’ agreement, to revise the style of cause by removing the reference to “by her Litigation Guardian and Legal Representative, Mohammad Askary.” The judge directs the parties to confer on a revised timetable for the exchange of materials and to address the issue of mootness in their application materials. At this procedural stage, there is no final determination of the underlying judicial review. In practical terms, Ms. Askary is partially successful in obtaining protection for her most sensitive health and personal records, but not for her transcript; the IPC’s initial request for broad sealing is correspondingly narrowed by the court. The endorsement does not make any order for damages, compensation, or quantified costs, and no total monetary award in favour of any party can be determined from this decision.