Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100

CITATION: Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100

DIVISIONAL COURT FILE NO.: 462/20

DATE: 20210216

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

Work Safe Twerk Safe Applicant (Moving Party)

– and –

Her Majesty the Queen in Right of Ontario as Represented by the Solicitor General and the Ministry of Health Respondent (Responding Party)

COUNSEL: Naomi Lillian Sayers and Christopher Folz, for the Moving Party Rika Sawatsky and S. Zachary Green, for the Respondent

HEARD at Toronto by videoconference: December 18, 2020

BEFORE: Favreau J.

Overview

[1] The applicant, Work Safe Twerk Safe ("Work Safe"), has commenced an application for judicial review challenging regulations made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c.17 ("ROA"), that limit the operation of strip clubs during the COVID-19 pandemic.

[2] Work Safe brings this preliminary motion for an order permitting the anonymization of affidavits to be sworn by strippers[^1] in support of the application. Specifically, Work Safe seeks an order permitting the strippers to use initials other than the initials of their legal names in affidavits and all other court documents that refer to the strippers. The respondent, Her Majesty the Queen in Right of Ontario as Represented by the Solicitor General and the Ministry of Health ("Ontario"), opposes the motion.

[3] For the reasons that follow, I am granting an anonymization order on the term discussed below.

Background

[4] Work Safe is an advocacy group that promotes the rights of strippers in Ontario. Work Safe has not yet been incorporated but is seeking to be incorporated as a non-profit corporation. Ontario does not take issue with its status or standing on this motion.

[5] Work Safe's application for judicial review challenges regulations under the ROA that require strip clubs in certain parts of Ontario to remain closed, except for the purpose of serving food and beverages in accordance with certain conditions. Work Safe argues that the regulations at issue unjustifiably infringe the rights of strippers under sections 2, 7 and 15(1) of the Charter.

[6] Work Safe intends to file affidavits sworn by a number of strippers in support of the application for judicial review. Work Safe seeks permission to anonymize these affidavits by using initials other than the initials linked to their full legal names.

[7] In support of the motion, Work Safe has filed three affidavits.

[8] The first affidavit was sworn by Tuulia Law, who is one of the co-founders of Work Safe. Ms. Law describes herself as a "researcher with a key focus on the interplay of gender norms with legal and social governance of sexual conduct". Much of her research has focused on people who work in the sex industry, including strippers. Ms. Law's affidavit includes the following evidence:

a. Her research and other academic research in Ontario have found that strip club management often respond negatively or punitively to attempts by strippers to organize or obtain better working conditions. Ms. Law believes that strip club management would perceive the participation of strippers in this application for judicial review as a form of labour organization. Strippers who swear affidavits in support of the application for judicial review would therefore be vulnerable to termination and other forms of reprisal if they were to use their full names.

b. Stripping is a stigmatized occupation. If strippers were to use their full names, this could make it more difficult for them to keep or obtain mainstream or conventional work.

c. Having their full names in the court record could expose strippers to Children's Aid investigations and various forms of discrimination.

d. Work Safe protects the anonymity of its members when communicating with the press or even for the purpose of internal communications.

[9] The second affidavit filed by Work Safe was sworn by Jane Doe. She has worked as a stripper in strip clubs for ten years in Toronto, Niagara and Kingston. She states that she wishes to remain anonymous "because of the risk of harm in [her] ability to access future employment opportunities that require [her] to follow certain codes of conduct if [she] is out about her work". The balance of her affidavit deals primarily with her experience working as a stripper since the beginning of the pandemic and does not address directly the reasons for seeking an anonymization order.

[10] The third affidavit was sworn by a law student who provided evidence relevant to the scheduling of this motion.

[11] Ontario did not file any evidence nor did it cross-examine Work Safe's affiants.

[12] At the beginning of the hearing, counsel for the applicant confirmed that they gave notice to the media in accordance with Part V of the Superior Court's Consolidated Practice Direction that addresses the procedure parties are to follow when seeking a publication ban. No members of the media appeared on the motion in response to the notice.

Analysis

[13] Given that Work Safe seeks to restrict public access to the identity of strippers who will be swearing affidavits on the application, the test to be applied is the test articulated by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76. The Dagenais/Mentuck test requires Work Safe, as the party seeking the order, to establish that:

a. Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

b. The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the respondent to a fair and public hearing, and the efficacy of the administration of justice.

[14] Work Safe argues that the circumstances of this case meet the Dagenais/Mentuck test. It argues that publicly identifying the strippers who swear affidavits in these proceedings would put their economic and family safety at risk. It further argues that anonymizing the strippers' names using initials will have minimal impact on the freedom of the press and the public's access to information about the case.

[15] Ontario argues that Work Safe has not put forward sufficient evidence to warrant an anonymization order, and that this issue has already been decided in Adult Entertainment Association of Canada the Nuden v. Ottawa (City), 2005 16571 (Sup. Ct.).

Issue 1: Is the order necessary to prevent a serious risk to the administration of justice?

[16] In H. (M.E.) v. Williams, 2012 ONCA 35, the Court of Appeal set out some of the principles that apply to deciding whether the necessity branch of the Dagenais/Mentuck test is met. At para. 33, the Court held that, in considering the necessity branch of the test, the court is to keep the "high constitutional stakes" of freedom or the press "at the forefront of the analysis":

The constitutional right to freedom of expression protects the media's access to and ability to report on court proceedings. The exercise of this fundamental freedom in the context of media coverage of court proceedings is essential to the promotion of the open court principle, a central feature of not only Canadian justice, but Canadian democracy.

[17] The necessity branch of the test only focuses on the existence of a serious risk to the public interest. At this stage, the potential benefits of the order are irrelevant: Williams, at para. 31.

[18] In Elbakhiet v. Palmer, 2019 ONCA 333, at para. 27, the Court of Appeal set out the three issues the court is to consider in determining whether the necessity branch of the test has been met:

To meet the necessity part of the test, the requesting party must show: an important interest that can be expressed as a public interest; a real and substantial risk that is well-grounded in the evidence and that poses a serious threat to the interest in question; and no other reasonable alternative to the order sought.

Public interest at stake

[19] I accept that there is a public interest at stake here.

[20] In Williams, at para. 27, the Court held that "an individual's right to seek and obtain appropriate relief in a court proceeding is a matter of significant public interest impacting on the proper administration of justice". In that case, the Court held that the public interest was engaged in divorce proceedings because the case involved access to the court on matters "integral to personal autonomy". In this case, without assessing the strength of Work Safe's Charter challenge, what is at stake is access to the court on matters involving the livelihood and safety of strippers. Employment and the ability to work safely are matters integral to personal autonomy. Accordingly, I accept that Work Safe's ability to bring this application forward on behalf of the strippers engages matters of public interest.

Real and substantial risk

[21] Even if there is a public interest, at stake, Work Safe must establish that there is a real and substantial risk that it cannot access the courts on behalf of the strippers absent an anonymization order. In Williams, at para. 28, the Court held that a party seeking an order of this nature does not have to establish that it would not go to court absent the order because access to the courts "at the cost of substantial debilitating emotional or physical harm … would be more illusory than real". However, at para. 30, the Court emphasized that personal emotional distress and embarrassment are not sufficient; there must be a risk of serious physical or emotional harm.

[22] In Williams, at para. 34, the Court of Appeal also emphasized the heavy evidentiary burden faced by the party seeking an order restricting public access to the courts:

[T]he centrality of freedom of expression and the open court principle to both Canadian democracy and individual freedoms in Canada demands that a party seeking to limit freedom of expression and the openness of the courts carry a significant legal and evidentiary burden. Evidence said to justify non-publication and sealing orders must be "convincing" and "subject to close scrutiny and meet rigorous standards".

[23] In A.B. v. Bragg Communications Inc., 2012 SCC 46, at paras. 16, the Supreme Court held that, even in the absence of direct evidence of harm, the court can find that there is a risk of harm "by applying reason and logic".

[24] In this case, Ontario argues that Work Safe has not met its evidentiary burden of providing "convincing" evidence of a serious risk of harm. In particular, it argues that Work Safe has not provided direct evidence of the risks strippers would face if they use their names or evidence that Work Safe cannot advance the application by finding strippers willing to identify themselves in affidavits sworn in support of the application. In support of this position, Ontario relies on the Adult Entertainment Association decision referred to above.

[25] In Adult Entertainment Association, the applicants challenged a by-law that regulated "adult entertainment parlours" in the City of Ottawa. In support of the application, the applicants sought to include forty-five anonymized affidavits sworn by "female adult entertainment performers". In support of the motion, the applicants put forward an affidavit sworn by one of the performers who referred to the potential stigma to the performers and their children if they had to identify themselves publicly. The Court dismissed the motion. The Court found that there was no evidence that none of the forty-five affiants would be willing to swear affidavits using their full names. The court also noted that many of the affiants did not appear to have families or connections to the Ottawa region.

[26] In my view, the Adult Entertainment Association case is distinguishable. The decision was based on the specific circumstances and evidence before the Court in that case. In addition, it was decided in 2005. At that time, the proposed affiants' ties to Ottawa may have seemed relevant. However, in 2021, as argued by Work Safe, the internet greatly diminishes the relevance of geography in determining the risks of public identification. Once the strippers' names are made public, as a matter of common sense and logic, that information is available to the world.

[27] Here, I agree with Ontario that Work Safe's evidence could have been stronger and it would have been preferable to have direct evidence from the strippers of the risks they face. However, I am satisfied that Work Safe's evidence in combination with reason and logic are sufficient to establish the necessity branch of the test.

[28] Ontario does not challenge Ms. Law's qualifications or the nature of her research. The evidence reviewed above establishes that:

a. Strippers who advocate for their rights are vulnerable to reprisal by the owners of strip clubs. Public participation in this application places them at risk of losing their current employment or of finding future employment as strippers.

b. Given the stigma associated with stripping, public knowledge of a stripper's identity makes them vulnerable to losing their current employment in jobs other than stripping or in finding work other than stripping in the future.

c. Given the stigma associated with stripping, strippers with children are vulnerable to child protection proceedings or the ways in which their children may be treated in schools or by peers if their mothers' work as strippers becomes publicly known.

[29] Ontario argues that this evidence is speculative and not supported by any direct evidence. However, Ms. Law's evidence accords with common sense given the stigma associated with working as a stripper and the easy access to information on the internet. It would be too high an evidentiary burden to require Work Safe to put forward an affidavit on behalf of a stripper who had experienced the harm referred to above. The court is concerned with the risk of harm and not actual harm. The evidence required to demonstrate risk will necessarily depend on the particular circumstances of each case. Here, I am satisfied that Work Safe has demonstrated risk of harm that is more than speculative and more than embarrassment or humiliation.

No other reasonable alternative

[30] Ontario argues that Work Safe has not established that there is no reasonable alternative to the anonymization order requested. Specifically, Ontario argues that Work Safe has not established that no strippers it represents would be prepared to use their real names. I do not accept this argument.

[31] Work Safe seeks to bring an application challenging regulations that prevent strippers from working during the COVID-19 pandemic. Work Safe seeks to put forward affidavits from strippers addressing their circumstances and experiences in support of the application. The underlying interests at stake are matters related to the strippers' ability to earn a living and the privacy and personal safety of their families. Without commenting on the strength or weakness of Work Safe Charter challenge, presenting the case will include presenting evidence from women in different socio-economic and demographic circumstances. Requiring Work Safe to only present its case relying on affidavits from strippers who are willing to identify themselves publicly will limit the type of evidence presented to the court on the application.

[32] Accordingly, I am satisfied that Work Safe has met the necessity branch of the Mantuck/Dagenais test.

Issue 2: Do the salutary effects of the order outweigh the deleterious effects?

[33] I am satisfied that the salutary effects of an order protecting the identity of the strippers from the public outweigh the deleterious effects of such an order in this case.

[34] There is no doubt that, once it goes forward on the merits, this case may attract public interest given the issues raised. However, the specific identities of the strippers who may swear affidavits in support of the application will have no real bearing on the press's ability to report on the case or to the public's access to information about the case. There is no evidence that the proposed affiants are public figures, and there is therefore no public interest in knowing their identities: S.M. v. C.T., 2020 ONSC 4819 (Sup. Ct.), at para. 37.

[35] Notably, the press has shown no interest in having access to the strippers' identities. In her affidavit, Ms. Law states that Work Safe regularly offers to make strippers available for interviews with the press on the condition of anonymity and that these conditions are respected. As indicated above, the press received notice of this motion and chose not to intervene.

[36] Ontario's primary argument on the issue of the deleterious effects of an anonymization order and the proportionality of such an order is that allowing the strippers to anonymize their affidavits will have a negative impact on the effectiveness of cross-examinations. In making this argument, Ontario relies in part on the Superior Court's decision in A.B. v. Stubbs, 1999 14801 (ON SC), 44 O.R. (3d) 391 (1999), at para. 36, where there Court stated that "[a]s a general proposition, it is probable that witnesses are more likely to be truthful in their testimony if they know it is subject to being scrutinized by an audience within the context of their identity being known. A person must be responsible for his or her words and actions and this is more likely with his identity being known to the public."

[37] There is no doubt that the affiants should be accountable for their evidence through effective cross-examinations. The draft order included in Work Safe's motion record seeks to allow the strippers to swear anonymized affidavits. On its face, the draft order suggests that neither Ontario nor the Court should have access to the identity of the strippers. When I raised this issue during the hearing, counsel for Work Safe confirmed that it did not intend to prevent Ontario from knowing the identities of the strippers who swear affidavits. Similarly, their identities should be known by the Court. This will go some way to addressing the concern over the accountability for evidence subject to cross-examination.

[38] The strippers should not be permitted to shield their identities from Ontario and the court, but anonymizing affidavits and other documents that may be available in the public record through the use of non-identifying initials provides a balance between the salutary and deleterious effects of such an order.

Conclusion

[39] Work Safe's motion is granted. An order will be made allowing for the anonymization of the strippers' names in publicly available court documents, but provision needs to be made in the order for a sealed record that contains affidavits that use the affiants' full names. The parties are to try to agree on the terms of such an order and forward it to my attention. If they are not able to agree, they can request a case conference with me to settle the terms of the order.

[40] As agreed between the parties, there will be no costs of the of the motion.

___________________________ Favreau J.

Released: February 16, 2021

[^1]: At the beginning of the hearing, counsel for Work Safe advised me that "strippers" is the term used by Work Safe and the term preferred by the individuals it represents.