Ruling finds no evidence of serious risk to public interest of following fair procedures
The Nova Scotia Supreme Court refused to issue a confidentiality order in a regulatory proceeding against a dentist who failed to meet all three steps in Sherman Estate v. Donovan, 2021 SCC 25, the test for limiting the open court principle.
A discipline committee declined to close the underlying proceeding to the public or to proceed against the dentist registered in Nova Scotia – the applicant in Doe v. Nova Scotia (Provincial Dental Board), 2026 NSSC 46 – on an unnamed basis, with a publication ban over her identity.
The applicant appealed and moved for permission to present fresh evidence. The respondent – the Provincial Dental Board of Nova Scotia, now known as the Nova Scotia Regulator of Dentistry and Dental Assisting – dismissed the appeal and the motion.
The applicant applied for a judicial review and moved for a confidentiality order under r. 85.04(1) of Nova Scotia’s Civil Procedure Rules. She wanted the court to:
- Refer to her as Dr. Jane Doe
- Block public access to the proceeding
- Ban the publication of all aspects
- Seal all documents filed
The respondent regulator opposed the applicant’s motion.
Confidentiality not ordered
The Supreme Court of Nova Scotia denied the motion and rescinded the prothonotary’s interim confidentiality order.
The court acknowledged the fundamental, well-established principle that Canadian courts should be open to the public. The court added that confidentiality orders, which are exceptional and extraordinary, should be justifiable.
To exercise its discretion to limit the open court presumption by restricting public access to the documents filed and the proceedings, the court explained that a case should meet the three steps in Sherman Estate: a serious risk to an important public interest, necessity, and proportionality.
In this case, the court ruled that the applicant failed to rebut the presumption that the open court principle would apply and failed to meet any of the three mandatory prerequisites in Sherman Estate.
First, the court saw no evidence that court openness posed a serious risk to the alleged public interest of following fair procedures in the context of professional regulation. The court pointed out that the applicant provided no evidence at all in support of the motion.
The court rejected the argument that the relevant statutory regime and the dental regulator’s precedents in disciplinary matters mandated confidentiality.
The court held that openness aligned with best practices in professional regulation, the Canadian Charter of Rights and Freedoms, and the Sherman Estate considerations. The court noted that it regularly openly heard issues of conflict of interest, apprehension of bias, and procedural fairness.
The court also disagreed with the argument that the proceeding was in its investigatory stage, thus entitling the applicant to continued confidentiality.
The court said the applicant’s attempts to appeal and review decisions finding that the court should publish her name, rather than the legislated process, had thus far prevented the publication of her name. According to the court, the applicant had no reasonable or legitimate expectation of confidentiality at this stage of the matter.
Regarding the applicant’s reputation, the court noted that mere personal feelings of disadvantage, discomfort, or inconvenience due to public scrutiny were insufficient to overturn the open court presumption. The court added that the possible mootness of some issues of the judicial review application was not, by itself, enough to support a confidentiality order.
Lastly, the court noted that the applicant failed to offer any substantive argument or any evidence at all about necessity or proportionality, the second and third steps of the Sherman Estate test.
