Executive Summary: Key Legal and Evidentiary Issues

• Motion concerns a putative class action alleging systemic wrongdoing in children’s homes operated by the defendants, focused specifically on sealing part of the certification record.
• Parties identify certain affidavit passages and exhibits (the “Sensitive Information” / “Protected Information”) containing medical, psychological, academic, social history, traumatic experiences, intimate family history, and youth criminal justice information about former residents and others.
• The court applies the Sherman Estate three-part test and considers whether protecting the privacy of young persons and their records justifies limiting the open court principle under s.137(2) of the Courts of Justice Act.
• Statutory privacy protections in the Child, Youth and Family Services Act, 2017 and the Youth Criminal Justice Act are analyzed to assess the public interest in safeguarding young persons’ personal and youth justice information.
• Redaction alone is found insufficient, but a complete ban on filing the Sensitive Information is rejected as it would prevent the defendants from relying on evidence they say is relevant to the certification motion.
• An interim, narrowly tailored sealing order is granted over the specified Sensitive/Protected Information for the certification motion, with no costs awarded and any permanent sealing to be determined before any common issues trial.

Background and nature of the proceeding
This proceeding is described as a putative class action. It advances allegations of systemic wrongdoing in children’s homes operated by the defendants. The style of cause is Morrison v. Hatts Off Inc., 2025 ONSC 6992, Court File No. CV-23-80958-CP, in the Ontario Superior Court of Justice. The plaintiff is Jamar Morrison. The defendants are Hatts Off Inc., Naylor Nine Holdings Limited, Gordon Naylor, Bronwyn Naylor, Aladine Hanna, Hatts Off Specialized Services, and Hatts Off Specialized Services Inc. The proceeding is brought under the Class Proceedings Act, 1992 and was commenced at Hamilton. On May 31, 2024, the plaintiff served his certification record. On October 31, 2024, the defendants served their responding record. The responding record includes affidavits by defendant Bronwyn Naylor and a proposed expert, Rhonda Hallberg, referred to as the Naylor Affidavit and the Hallberg Affidavit.

The sensitive information in the certification record
The plaintiff submits that paragraph 5 of the Naylor Affidavit together with Exhibits A–L and LL, and paragraph 34 of the Hallberg Affidavit, collectively contain Sensitive Information. The plaintiff says this Sensitive Information includes personal information that threatens the privacy interests of the plaintiff and other former residents of the defendants’ homes who delivered affidavits in support of the certification motion, collectively described as the Affiants. It is also said to affect the privacy of the Affiants’ family members and individuals named by the Affiants as victims of the defendants’ abuse. The Sensitive Information includes and refers to the personal records of the Affiants contained in the files of the defendant Hatts Off Inc. Those records include medical, psychological and academic records, behavioural assessments, social history and discharge reports, accounts of traumatic experiences, as well as intimate family history and youth criminal history information. The records contain details regarding the Affiants’ childhood, information about their parents, siblings, and experiences of child abuse. The information was collected by Hatts Off Inc. in its capacity as a service provider under the Child, Youth and Family Services Act, 2017. The Sensitive Information also contains references to youth criminal justice charges that identify both a young offender and a young person as a victim of the offences.

Positions of the parties and relief sought
The plaintiff seeks a limited sealing order directing that the Sensitive Information not form part of the public record, and that any public materials filed by either party in respect of the certification motion be redacted to omit references to the Sensitive Information. This is referred to as the Primary Relief. In the alternative, the plaintiff seeks a declaration that the public filing of the Sensitive Information constitutes a breach of section 286 of the Child, Youth and Family Services Act, 2017 and/or sections 110 and 111 of the Youth Criminal Justice Act. This is referred to as the Alternative Relief. The defendants are not opposed to the Primary Relief, provided that the Sensitive Information is available for use at the certification motion and that any sealing order regarding the Sensitive Information be made on an interim basis, with any permanent sealing order to be decided prior to the commencement of any common issues trial. These are described as the Defendants’ Conditions. The defendants oppose the Alternative Relief. The plaintiff does not oppose the Defendants’ Conditions to the Primary Relief. The motion is brought by the plaintiff for an order that certain documents be treated as confidential, sealed, and not form part of the public record. The motion is heard on December 5, 2025, and Justice Valente notes that an interim sealing order of a portion of the court record was granted that day, with written reasons to follow. The reasons released on December 16, 2025 are the written reasons for that decision.

Open court principle and statutory framework
Justice Valente emphasizes that, notwithstanding the parties’ consensus on the Primary Relief, the open court principle provides that court proceedings should be presumptively a matter of public record and open to the public. The decision refers to Named Person v. Vancouver Sun and the Courts of Justice Act. The court’s jurisdiction to seal court files arises from section 137(2) of the Courts of Justice Act, which states that a court may order that any documents filed in a civil proceeding before it be treated as confidential, sealed, and not form part of the public record. The governing legal test for confidentiality and sealing orders is taken from Sherman Estate v. Donovan, 2021 SCC 25. Sherman Estate requires the party seeking to limit court openness to establish that court openness poses a serious risk to an important public interest, that the order is necessary to prevent that serious risk because reasonable alternative measures will not prevent it, and that, as a matter of proportionality, the benefits of the order outweigh its negative effects. The decision notes that the Supreme Court has recognized the importance of protecting the privacy of young persons in respecting their dignity, personal integrity and autonomy, referring to A.B. v. Bragg Communications Inc. The Court of Appeal in Kirby v. Woods, 2025 ONCA 437, is cited for the proposition that children’s privacy is an important public interest. The decision also cites R. v. Canadian Broadcasting Corporation, 2024 ONCA 765, for the conclusion that the protection of young persons’ privacy records accords with society’s deepest values embedded in rights guaranteed under the Charter, and that constitutional protections of privacy apply equally, if not more strongly, to young persons. The reasons note that the CYFSA and YCJA do not address sealing orders directly, but they recognize the importance of protecting the personal information of young persons. Section 286 of the CYFSA imposes strict limits on the collection, use and disclosure of young persons’ personal information by service providers. The YCJA prohibits the publication of information that would identify a young person who is subject to the Act, or a person who is a victim of an offence alleged to have been committed by a young person. Sections 110(3), (4) and (6) of the YCJA clarify that the protection of a young person’s information does not necessarily cease when that person reaches the age of majority and that information protected by section 110 is protected indefinitely unless otherwise agreed by the former youth themself or authorized for release by the Youth Justice Court. At the same time, the decision notes that ss.291(1)(i) and 292(1)(i) of the CYFSA permit use and disclosure of information for the purpose of a legal proceeding, reflecting a public interest in disclosure in that context. Section 110(2) of the YCJA is also cited as suggesting a public interest in disclosure where it occurs in the course of the administration of justice.

Application of the Sherman Estate test
On the first branch of the Sherman Estate test, the court considers whether the Sensitive Information reveals something intimate and personal about the Affiants and whether its publication would pose a real and substantial risk to their privacy. The decision recalls that Sherman Estate asks whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences. The court finds that the Sensitive Information does reveal something intimate and personal about the Affiants such that publication of the information will pose a real and substantial risk to their privacy. The reasons note that the loss of privacy flowing from the protection of a minor’s health information has previously been found to be a real and substantial risk warranting a sealing order, referring to Athwal v. Mather, 2019 ABQB 676. On the second branch, the court analyzes possible alternatives to a sealing order. The defendants concede that there is a strong public interest in protecting the privacy of children. They had proposed redactions to remove youth criminal history information from the Sensitive Information. Justice Valente finds that these proposed redactions are insufficient to prevent the risk to the privacy interests of the Affiants. At the same time, the court finds that an order banning the Sensitive Information from being filed at all is equally unacceptable, because such an order would deny the defendants from relying on this evidence that they assert to be relevant to certification. The court therefore concludes that a sealing order limited to the Sensitive Information is the appropriate way to address the real and substantial risk identified. On the third branch, proportionality, the court weighs the salutary and deleterious effects of the proposed sealing order. The primary salutary effect is identified as the protection of the Affiants’ youth privacy interests. Another recognized salutary effect is the enhancement of trial fairness, to the extent that the proposed sealing order would permit the defendants the opportunity to rely on the Sensitive Information at certification without infringing on the privacy of the Affiants. The reasons further explain that the Sensitive Information represents 127 pages of a 4,676-page responding record. Because it is a small portion of the record, the only deleterious effect of the requested order is a limited infringement on the open court principle which is not significant and is outweighed by its salutary effects. The court accepts the plaintiff’s submission that the open court process is designed to ensure transparency of the system of justice and not to publish the sensitive personal information of young people, which risks exploiting their vulnerabilities in society.

Form and scope of the interim sealing order
The court also considers the duration and scope of the sealing order. Justice Valente accepts the defendants’ submission that any sealing order be made on an interim basis to expire prior to the commencement of any common issues trial, citing Behold Control Equipment Inc. v. Race Mechanical Systems Inc., 2024 ONSC 6098. For all of these reasons, the decision states that an interim sealing order limited to the Sensitive Information will issue. The conclusion of the endorsement records that an interim sealing order will issue in the form agreed to by counsel and attached as Schedule A. Schedule A sets out the formal order. It states that the order is made on an interim basis to facilitate the filing of materials in respect of the plaintiff’s certification motion. It identifies as Protected Information, for purposes of the order: paragraph 5 of the Affidavit of Bronwyn Naylor affirmed October 29, 2024, and Exhibits A–L thereto, and paragraph 34 of the Affidavit of Rhonda Hallberg sworn October 31, 2024. All references to this Protected Information contained in the materials filed by the parties for the certification motion shall not form part of the public record, subject to the terms of the order. The order requires that any public materials filed by either party in respect of the certification motion must redact or remove references to the Protected Information. It permits the parties to file unredacted versions of the materials that reference the Protected Information by providing electronic copies to the Assistant Trial Coordinator, with the portions containing Protected Information highlighted or otherwise identified. Any party seeking a permanent sealing order, or other order relating to limitations on access to the Protected Information, must seek such relief, and that relief is to be determined prior to the commencement of any common issues trial. The order states that the relief granted is without prejudice to the plaintiff’s right to move at any time for a permanent sealing order in respect of the Protected Information at any common issues trial or otherwise and without prejudice to the defendants’ right to contest such a motion. It also clarifies that nothing in the order prevents or affects the ability of a party to move before the court for further orders or directions with respect to the use or disclosure of information in the proceeding.

Disposition, successful party, and monetary outcome
In light of the court’s finding that a sealing order is appropriate in the circumstances, Justice Valente finds it unnecessary to consider the plaintiff’s Alternative Relief regarding alleged breaches of the CYFSA and YCJA. The endorsement concludes that an interim sealing order will issue in the form agreed to by counsel, and Schedule A is the attached order implementing that relief. The motion was brought by the plaintiff, and the court grants the interim sealing order he requested, on the agreed terms set out in Schedule A. Clause 7 of the order states that no costs shall be awarded on this motion. The decision does not grant any damages, cost awards, or other monetary relief. Accordingly, the plaintiff succeeds in obtaining the interim sealing order, but there is no monetary award and no costs ordered, and therefore no total monetary amount in favour of any party can be determined from this decision.