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