Executive Summary: Key Legal and Evidentiary Issues

• Judicial review centers on whether a dentist facing discipline is entitled to a broad confidentiality order despite the strong presumption of open courts.
• The court found a complete lack of evidentiary foundation from Dr. Doe, who filed no affidavit and relied only on submissions and generalized assertions.
• Legislative schemes (Dental Act and Regulated Health Professions Act) and regulatory practice were interpreted as supporting openness and named publication at the disciplinary hearing stage, not confidentiality.
• Alleged harms based on reputational impact, fairness concerns, and “confidentiality stage” arguments were held to be speculative and insufficient to meet the Sherman Estate test.
• The court emphasized that serious allegations of procedural unfairness and bias against a regulator should ordinarily be aired in open court, not behind sealing orders and publication bans.
• Applying Sherman Estate, the judge held that no serious public interest risk, no necessity, and no proportionality were shown, so the motion for confidentiality was dismissed and the interim order rescinded.

Background and parties

The case arises from the regulation of a registered dentist in Nova Scotia, identified in the court proceeding as Dr. Jane Doe, who is subject to a complaint and ensuing disciplinary process before the provincial dental regulator. The regulator, formerly the Provincial Dental Board of Nova Scotia under the Dental Act, is now known as the Nova Scotia Regulator of Dentistry and Dental Assisting under the Regulated Health Professions Act (RHPA). Dr. Doe brought a judicial review of a Board decision that dismissed her appeal from a Discipline Committee ruling and refused to admit fresh evidence; in parallel, she brought a motion in the Supreme Court of Nova Scotia seeking broad confidentiality protections over the court record in that judicial review proceeding.

Disciplinary process and regulatory framework

The matter began when the Registrar received a written complaint against Dr. Doe on November 25, 2020. A first panel of the Complaints Committee referred the complaint to the Discipline Committee for a hearing and decided that its decision would be published on a named basis. Dr. Doe appealed this First Complaints Decision to the Discipline Committee, but in March 2022 she entered into a Consent Order: she discontinued the appeal, the complaint was sent back to a differently constituted Complaints Committee for a de novo hearing, and she agreed not to appeal the new Complaints Committee decision. A newly constituted Complaints Committee again heard the complaint de novo in March 2023 and once more referred the matter to the Discipline Committee, again ordering publication on a named basis in what became known as the Second Complaints Decision. Despite the Consent Order’s no-appeal clause, Dr. Doe appealed this Second Complaints Decision to the Discipline Committee, which dismissed her appeal in November 2023. The parties then prepared for a full discipline hearing, including a Notice of Charge and Hearing that identified Dr. Doe by name. Several preliminary issues were identified: which statutory regime applied (the former Dental Act and its Discipline Regulations, the newer RHPA and its General Regulations, or some combination); whether there should be restrictions on publication of the Notice of Charge and Hearing; whether the hearing should be open to the public; and whether the complainant’s name should be protected.

Decisions of the Discipline Committee and the Board

In October 2024, the Discipline Committee granted a publication ban protecting the complainant’s name, but on the broader preliminary issues it decided later that month that the Notice of Charge and Hearing would be published without restriction and that the discipline hearing would be open to the public. Dr. Doe appealed to the Dental Board, challenging both the complainant-name publication ban order and the openness and named-publication rulings. In September 2025, the Board dismissed her appeal entirely and also refused her preliminary motion to introduce fresh evidence. It is that Board decision that Dr. Doe now seeks to have judicially reviewed in the Supreme Court of Nova Scotia. Throughout these regulatory steps, Dr. Doe’s name had not in fact yet been publicly released, largely because of the time taken by her multiple appeals and motions, but no decision-maker had ever granted her an affirmative confidentiality order over her identity.

The confidentiality motion before the court

Separately from the merits of the judicial review, Dr. Doe brought a motion in the Supreme Court under Civil Procedure Rule 85.04 for an extensive confidentiality order. She sought to have all documents in the judicial review proceeding sealed; public access to any part of the court file blocked; publication of all aspects of the proceeding banned; and her identity shielded by requiring that she be referred to as “Dr. Jane Doe”. She also requested that any patients who were not parties be referred to by pseudonyms. The respondent regulator did not oppose protecting patient identities and agreed that all patients and their identifying information should remain confidential, consistent with provincial legislation on personal health information. However, the regulator opposed the sweeping sealing, access-blocking, and publication-ban relief sought in respect of Dr. Doe and the proceeding generally. An interim confidentiality order had been made administratively by the Prothonotary to allow the Notice of Judicial Review to be accepted on an anonymized basis pending the hearing of this motion. The motion therefore required the court to decide whether that interim protection should be continued, expanded into a full order, or rescinded in light of the open courts principle and Rule 85.

Governing legal principles on confidentiality

Rule 85.04 permits a judge to order that a court record be kept confidential only if doing so is “in accordance with law”, which includes both the constitutionally protected freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms and the open courts principle. The rule lists examples of confidentiality orders, including sealing documents, blocking access to recordings, banning publication, and authorizing pseudonyms. The Supreme Court of Canada’s decision in Sherman Estate v. Donovan established the modern test for discretionary limits on the open court presumption. Under Sherman Estate, the applicant for a confidentiality order must satisfy three prerequisites: first, that court openness poses a serious risk to an important public interest; second, that the order sought is necessary to prevent this risk because no reasonably alternative measures will suffice; and third, that, as a matter of proportionality, the benefits of the order outweigh its negative effects on openness. The Nova Scotia Court of Appeal has recently reaffirmed and applied these principles in decisions such as Umeshappa v. PJ, Buxton v. Nova Scotia (Attorney General), and Fraser v. Nova Scotia Barristers’ Society, stressing that confidentiality orders are “exceptional remedies” and that they must rest on a sufficient evidentiary foundation, not on speculative or bare assertions, particularly where the only evidence comes in the form of counsel’s affidavit instead of a party-sworn affidavit.

Application of the Sherman Estate test to Dr. Doe’s motion

In assessing Dr. Doe’s request, the court first emphasized the evidentiary deficiency: she had filed no affidavit of her own, provided no concrete evidence of harm, and advanced only submissions and generalized concerns. The judge reiterated that discomfort, embarrassment, or reputational anxiety arising from public scrutiny is not enough to overcome the strong presumption of open courts and that allegations of procedural unfairness and bias against a regulator are, if anything, reasons to maintain transparency rather than to seal the record. On the first step of the Sherman Estate test—whether openness creates a serious risk to an important public interest—Dr. Doe argued that the relevant public interest was in “following fair procedures”, citing Abrametz; that the applicable legislation and past regulatory practice mandated or contemplated confidentiality; that the matter remained at a “confidentiality stage”; that her reputation was at stake; that some grounds of judicial review would become moot without a confidentiality order; and that there were concerns about unfair prejudice, conflicts of interest, systemic bias, and apprehension of bias due to the transition from the Dental Act to the RHPA. The court rejected each strand. It held that Dr. Doe had not shown how any public interest in fair procedure was threatened by openness in this judicial review; that the statutory schemes actually contemplated and presumed open, public, and named hearings with the possibility of targeted publication bans, rather than mandated confidentiality over a registrant’s identity; and that there is no statutory “confidentiality stage” once a complaint has been referred for hearing. The judge noted that Dr. Doe’s name remained unpublished only because of her serial appeals and reviews, not because of any legal entitlement to anonymity. Reputational concerns were found to be speculative and entirely unsupported by evidence, and the court stressed that Dr. Doe had not even framed her argument as engaging a public interest in privacy or dignity of core identity of the kind recognized in Sherman Estate. The argument that some judicial review issues might be rendered moot without a confidentiality order did not, in the court’s view, justify extraordinary sealing and publication bans, particularly where the existing governing orders from the Discipline Committee called for a named, public hearing. Assertions of unfair prejudice and systemic bias were characterized as issues that courts routinely address in open proceedings, and, following Fraser, the judge held that where an applicant levels serious allegations of bias and procedural unfairness against a regulator, the interests of justice favour an open process. Beyond the first step, the court found that Dr. Doe had effectively ignored the second and third Sherman Estate requirements. She provided only brief, conclusory references to necessity and proportionality and no substantive analysis or evidence. Her authorities, including A Lawyer v. The Law Society of British Columbia, were distinguished on the basis that they involved different public interests, stronger evidentiary records, and different stages of regulatory processes. Against that backdrop, the court concluded that Dr. Doe had not satisfied any of the three mandatory prerequisites for limiting openness.

Outcome and implications

In the result, the Supreme Court of Nova Scotia dismissed Dr. Doe’s motion for a confidentiality order and rescinded the Prothonotary’s interim confidentiality order, thereby restoring the default position that the judicial review proceedings are open to the public, subject only to the unopposed protection of patient identities. The judge underscored that confidentiality orders and sealing are “exceptional and extraordinary” and that granting such relief in the absence of evidence and without satisfying the Sherman Estate test would undermine the administration of justice. The respondent regulator therefore emerged as the successful party on this motion, and while the court invited brief written submissions if the parties could not agree on costs, it did not fix any specific amount; as a result, no total monetary award, damages, or quantified costs in favour of the successful party can be determined from this decision.