Executive Summary: Key Legal and Evidentiary Issues

• Scope of a sealing order over portions of a judicial review record that contain information previously found exempt under FIPPA.
• Tension between open court principles and the statutory duty of non-disclosure for exempt records under the Freedom of Information and Protection of Privacy Act.
• Risk that public disclosure of exempt records would effectively predetermine and moot the pending judicial review of the IPC’s access-to-information order.
• Narrow tailoring of confidentiality measures to only two pages of email records and unredacted personal information, with redacted versions to remain part of the public record.
• Procedural concerns about delay and possible incompleteness of the record of proceedings, and how those are managed within case management rather than through the sealing motion.
• Application of the Sherman Estate/Sierra Club three-part test (as articulated in Law Society of Ontario v. AA) to justify a sealing order despite the general presumption of openness.

Background and parties

This case arises from an access-to-information dispute involving the University of Toronto, the Information and Privacy Commissioner of Ontario (IPC), and an individual requester, Bahareh Najafi. The matter reaches the Divisional Court as a judicial review application, where Ms. Najafi seeks to set aside IPC Order PO-4647. That order was made under Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) after she requested access to certain University of Toronto records. The access request was largely granted, but personal information and two pages of records were withheld under statutory exemptions. The parties before the Court are the applicant, Ms. Najafi (self-represented), the IPC as respondent and moving party on the motion, and the Governing Council of the University of Toronto as a respondent that supports the IPC’s position.

Access to information request and IPC order

Ms. Najafi requested access under FIPPA to records held by the University of Toronto. After processing, access was granted except for two categories of material: (1) personal information within certain email records, and (2) two pages of records that were fully withheld on the basis of FIPPA exemptions. In the IPC proceeding, those portions were treated as confidential and subject to non-publication obligations. The resulting IPC Order PO-4647 upheld those exemptions and confirmed that the information at issue should not be disclosed under FIPPA. Dissatisfied with that outcome, Ms. Najafi commenced a judicial review application in the Divisional Court, asking that Order PO-4647 be quashed. As part of that process, the IPC had to file the record of proceedings, which necessarily contains the very material that FIPPA and the IPC decision say must not be disclosed to the public.

Sealing motion before the Divisional Court

To deal with this tension, the IPC brought a motion in the Divisional Court seeking a sealing order over only those parts of the court record that remained exempt from disclosure following the IPC proceeding. The University of Toronto consented to the order. The applicant opposed in part, principally questioning why a further motion was needed when the information had already been protected before the IPC. The IPC relied on section 137(2) of the Courts of Justice Act, which gives the court power to make confidentiality orders, including sealing orders, where specific statutory prerequisites and the common law test for limiting openness are met. The motion was brought on affidavit evidence and sought a limited order: (i) sealing two pages of email records between University of Toronto staff (between December 15, 2022 and April 25, 2023) previously exempted in the IPC proceeding; and (ii) sealing unredacted versions of the remaining staff emails from that same period, but only to the extent they contain personal information that FIPPA treats as exempt. Redacted versions of those emails, with personal information removed, would still form part of the public court record. The Court explained that, although the information had been confidential in the IPC forum, a separate order was necessary to govern confidentiality of documents in the court file. The Court cited Law Society of Ontario v. AA for the principle that court records are presumptively public, and any departure from openness must be justified through a proper sealing order.

Procedural concerns about the record of proceedings

In her submissions, Ms. Najafi also raised a procedural issue about the timing and completeness of the record of proceedings. She argued that the record was served late and expressed concern that it might be incomplete for reasons unrelated to the sealing motion. The Court accepted that delivery of the record was delayed, but found the delay reasonable in light of the need first to determine the sealing motion and some confusion about the applicant’s position on confidentiality. The Court did not accept the suggestion of an incomplete record at that stage, describing it instead as a matter “to be seen” once the record is actually delivered. If problems persist, the Court noted, the applicant can raise them in the case management process for the judicial review. In other words, those procedural questions did not affect the merits of the sealing motion and were left to be managed separately as the case progresses.

Legal framework for sealing orders and open court principles

The Court emphasized that consent of the parties is not enough, on its own, to justify a sealing order. A party seeking such an order must meet a three-part legal test derived from Sherman Estate v. Donovan and Sierra Club of Canada v. Canada (Minister of Finance), as summarized by the Court of Appeal in Law Society of Ontario v. AA. The moving party must demonstrate: first, that disclosure poses a serious risk to an important public interest; second, that the order is necessary because no reasonable alternative measure can prevent that risk; and third, that, as a matter of proportionality, the benefits of the confidentiality order outweigh the negative effects on the open court principle and public confidence in the administration of justice. Applying this test, the IPC argued – and the Court accepted – that FIPPA’s statutory scheme itself creates a strong public-interest imperative: information recognized as exempt under the Act is not to be disclosed publicly. Furthermore, Divisional Court jurisprudence has repeatedly found that if exempt records are publicly disclosed during a judicial review of an IPC order, the very subject matter of the review would be disclosed before the legality of the IPC’s decision is tested. That would effectively predetermine and render the judicial review moot, undermining the public interest in meaningful oversight of administrative decision-making.

Court’s analysis and outcome

Justice Matheson accepted the IPC’s submissions and held that the statutory FIPPA regime, combined with prior case law, established a sufficient public interest to justify a narrowly tailored sealing order. The Court noted earlier decisions such as Fuda v. Ontario (Information and Privacy Commissioner) and Joseph v. Information and Privacy Commissioner of Ontario, which hold that public disclosure of records found exempt by the IPC would nullify the purpose of judicial review by deciding the core dispute in advance. This creates a serious risk to the public interest in both protecting statutorily exempt information and ensuring that challenges to IPC orders receive a fair and live adjudication. On necessity, the judge concluded that there was no reasonable alternative to sealing that would prevent the risk of prematurely disclosing exempt personal information and the two pages still in dispute. The order’s scope was carefully confined to only those portions: two pages of emails fully exempted in the IPC proceeding and the unredacted personal information in the remaining emails. The rest of the record, including redacted email versions, would remain open to the public, thereby minimizing any intrusion on court transparency. On proportionality, the Court found that the benefits of preserving the integrity of the judicial review and upholding FIPPA’s non-disclosure obligations outweighed the limited harm to the open court principle. The public would still have access to the balance of the record, and the sealing order would not frustrate public scrutiny of the Court’s reasoning. Accordingly, the Court granted the sealing order requested by the IPC. There was no order as to costs, meaning no party received any monetary award or reimbursement of legal costs, and no damages were granted. In monetary terms, therefore, no exact amount was ordered in favour of any party, and the successful party on this motion – the Information and Privacy Commissioner of Ontario – obtained only the procedural relief of a sealing order, without any financial award.