Ontario Court of Appeal clarifies the extent to which court-mandated settlement proceedings involving minors are subject to the open court principle

S.E.C. v. M.P., 2023 ONCA 821 (CanLII)

Reading time: 4 minutes (approx.)

By: Alexandre Doucet (Articled Clerk)

This appeal concerns the scope and limit of judicial discretion to approve settlements involving parties under a legal disability like a minor.

This appeal concerned two separate motions. In each, the motion judge approved a settlement under Rule 7.08 of the Ontario Rules of Civil Procedure, but denied the moving parties’ request for a sealing order. Rule 7.08(1) reads:

“No settlement of a 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.”

Approval of a settlement made by or against a person under a legal disability is done via a Notice of Motion to the Court. The moving party must present the litigation guardian’s position on the settlement and the minor’s consent to the settlement if they are over the age of 16. All this information is available to the public under the open court principle.

The appellants in this matter sought to seal the settlement motions from the public. They argued that this would protect solicitor-client privilege and keep sensitive settlement information out of the public eye.

First, the Court had to rule on whether settlement approval motions in writing are subject to the open court principle. The Court answered in the affirmative. Justice Sossin relied on the Supreme Court of Canada’s decision in Sherman Estate v Donovan, 2021 SCC 25. In Sherman, Justice Kasirer wrote that all judicial proceedings are engaged by the open court principle and will remain presumptively open to the public no matter the nature of the proceeding.

Second, the Court had to rule on whether the Court’s parens patriae jurisdiction (i.e., the best interests of minor parties) can be an overriding factor when the Court is asked to seal a Rule 7.08 settlement approval motion. Justice Sossin explained in paragraph 37 that the open court principle protects parties with a legal disability on a systemic level. The Court has express jurisdiction to maintain oversight over settlement proceedings involving minor parties and parties under a disability. Stated differently, where harm could be at play, the open court principle imbues the Court with judicial discretion to limit public access. Thus, the overriding factor was deemed unnecessary.

Case: 2023 ONCA 821 (CanLII) | S.E.C. v. M.P. | CanLII

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