Keeping-Tabs-Winter-2023

Using a publication ban to shield the identities of Dr. X and the Investigators was too great a cost to free
expression because anonymizing their names prevented public scrutiny of their performance. 7
Takeaways
It appears that the identities of witnesses in regulatory proceedings can now be made subject to publication
bans where online trolling and harassment is occurring, and perhaps even where it is just reasonably
anticipated. Though the O’Connor decision appears to be the first time that an Ontario Court
has found that “encouraging the reporting of misconduct” and “fostering witness candour” justified imposing
a publication ban in the context of a regulatory proceeding, 8 the Divisional Court has recently
accepted Justice Morgan’s approach in another case involving the College. 9
On the other hand, even severe online trolling directed at regulatory participants – including accusations
of Nazism – may be insufficient to warrant a publication ban if those individuals are “public officials”,
a term which will need to be fleshed out in future cases.
Notes
1. Evan Rankin together with his colleague Peter Wardle served as counsel to the College in this case.
2. Sherman Estate v Donovan, 2021 SCC 25 at para 38.
3. College of Physicians and Surgeons of Ontario v O’Connor, 2022 ONSC 195 at para 59 [O’Connor].
4. O’Connor at para 60.
5. O’Connor at para 62.
6. O’Connor at paras 71-72.
7. O’Connor at para 62.
8. Although the Divisional Court has previously been willing to entertain “fostering witness candour” as a “theoretical” important public interest in Turner
v Death Investigation Council, 2021 ONSC 6625 (Div Ct) at para 56.
9. Kilian v College of Physicians and Surgeons of Ontario, 2022 ONSC 5931 (Div Ct) at para 94.
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