Court File and Parties
COURT FILE NO.: CV-19-80235 MOTION HEARD: 20190528 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A., Plaintiff AND: Laurent Amyot and Conseil Scolaire Catholique Franco-Nord, Defendants
BEFORE: Master Kaufman
COUNSEL: Alim Jessa, Counsel for the Plaintiff
HEARD: May 28, 2019
Reasons for Decision
[1] The moving party is a prospective plaintiff seeking an ex parte order which would permit him to commence an action by way of either a pseudonym or his initials. He also seeks orders preventing counsel or members of the media from disclosing or publicizing his real name without further Court order, and sealing the materials filed in this motion.
[2] I dismissed the motion orally because the motion should not have been brought ex parte, and because the procedure set out in ss. 105 to 113 of the Consolidated Provincial Practice Direction (“CPPD”) had to be followed. I also advised counsel that I would not have granted the order based on the record before me. These are my reasons for dismissing the motion, without prejudice to the proposed plaintiff’s right to bring the motion again on notice, following the appropriate procedure, and with better evidence.
The motion
[3] The proposed plaintiff’s claim is based on allegations that one of his former teachers sexually abused him when he was between the ages of 7 and 8. Although it is not stated, I presume that the allegations against the Conseil Scolaire Catholique Franco-Nord are based on vicarious liability.
[4] The only evidence in support of this motion consists of an affidavit sworn by an associate in law firm representing the plaintiff. She states that the individual defendant was convicted of indecent assault for abusing and assaulting the proposed plaintiff. She believes that the intended civil proceedings will generate media attention and that there is a risk that the proposed plaintiff’s privacy will be violated if he cannot use a pseudonym. Moreover, she believes that if his name was publicized, it would further exacerbate the trauma he has suffered. Finally, the affiant believes that victims of sexual assault will be deterred from reporting abuse and commencing legal actions if they are publically scrutinized, and that the requested anonymity is crucial to encourage victims of sexual assault to come forward.
[5] One single exhibit is attached to the affidavit: an article published in the North Bay Nugget, which describe the criminal proceedings against the proposed defendant.
Jurisdiction
[6] Before turning to the merits, I should briefly address the issue of jurisdiction because this motion was made to a judge. The plaintiff relies on the Rules 14.06 and 2.03 of Rules of Civil Procedure RRO 1990 Reg. 194 (the “Rules”) as the Court’s authority to grant this motion. These rules provide:
14.06(1) Every originating process shall contain a title of the proceeding setting out the names of all the parties and the capacity in which they are made parties, if other than their personal capacity.
2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.
[7] There is no rule that specifically addresses restrictions on public access to court files or publication bans. The power to make orders of this kind rests on the court’s inherent jurisdiction to control its own process. [1]
[8] Pursuant to rule 37.02, a master has jurisdiction to hear any motion in a proceeding, and has all the jurisdiction of a judge in respect of a motion, except inter alia, where the power to grant the relief sought is conferred expressly on a judge by a statute or rule. As there is no statute or rule conferring on a judge the power to grant the order sought in this motion, this motion should have been made to the court, in accordance with rule 37.04.
Should the motion have been made on notice?
[9] Rule 37.07(1) provides that a notice of motion shall be served on any party or other person who will be affected by the order sought unless the Rules provide otherwise. The only exceptions to this requirement are described in subrules 37.07(2) and (3): where the nature of the motion or the circumstances render service impracticable or unnecessary and where the delay necessary to effect service might entail serious consequences.
[10] In my view, the proposed defendants are persons affected by the order sought. In A.B. v. Stubbs (“Stubbs”) Justice Cummings noted that permitting plaintiffs to proceed anonymously can affect the availability and the quality of the evidence at trial, to the detriment of a defendant:
As 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. Persons who testify in their own names are held to a public standard of accountability. As well, if the plaintiff's identity is kept secret, there is a possibility that evidence of members of the public who might otherwise have learned of the case and come forward with evidence will not be made available. It is important to the defendant to know everything possible about the plaintiff that might be relevant to his or her defence. There is the danger of creating a moral hazard in allowing a plaintiff anonymity. [2]
[11] Similarly, in PABD (Re), 2005 NLTD 214, Faour J. remarked that an action involving an unnamed plaintiff will minimise the opportunity for third parties to come forward with knowledge of the case. [3]
[12] The defendants are affected by the order sought and none of the exceptions in rule 37.02 apply. The plaintiff undertook in the notice of motion to make his identity known to the defendants. There is nothing to suggest that service is impracticable or unnecessary, and there is no evidence that any delay in service would entail serious consequences.
Compliance with the Consolidated Provincial Practice Direction
[13] On July 1, 2016, this Court implemented a formal protocol for notice to be provided to the media where a discretionary publication ban was sought in civil, criminal or family proceedings. Sections 107 of the CPPD provides that, unless a judge directs otherwise, “any person seeking a discretionary order restricting publication of any Superior Court proceeding must serve and file a notice of motion or application and any supporting materials, in accordance with the applicable procedural rules”.
[14] The CPPD requires the party seeking a publication ban to file a notice of request for a publication ban setting out the nature of the ban being sought. The notice is made available to the media outlets that have previously registered to receive such notifications. The media outlets may only use the information contained in the notice for the purpose of deciding whether they wish to attend and make submissions at the hearing of the motion seeking a publication ban, and they must undertake not to publish, broadcast or disseminate any of the information received in any way that could defeat the purpose of the ban being sought. Similar procedures already existed in other provinces, including Alberta, Nova Scotia and British Columbia. The relevant sections of the CPPD are:
Notification of the Media
Unless otherwise directed by a judge, the person seeking the publication ban (the requesting party) must provide notice to the media of the motion/application, using the procedure set out in this section.
The requesting party must complete and submit the “Notice of Request for Publication Ban” form available on the Superior Court of Justice website.
The length of notice required for the submission of the Notice of Request for Publication Ban is the same as the length of notice required under the applicable procedural rules for the serving and filing of the Notice of Application or Notice of Motion.
The information on the Notice of Request for Publication Ban will be distributed electronically to members of the media who have subscribed to receive notice of all publication ban applications/motions in the Superior Court.
Any member of the media who wishes to receive copies of the Notices prepared and submitted under this section should submit a request through the Superior Court of Justice website.
The requesting party may be required to produce a copy of the Notice of Request for Publication Ban to the Court at the hearing of the application/motion in order to establish that notice was provided in accordance with this section.
[15] Although the plaintiff only seeks to withhold his identity and prevent it from being publicized by counsel or the media, the order sought here constitutes a discretionary publication ban within the meaning of this protocol. In M (A) v. Toronto Police Service, 2015 ONSC 5684, a case which predates the implementation of the protocol referred to above, the applicant moved for an order to pursue an application using only his initials. Justice Nordheimer (as he then was) held that the media should be given notice whenever someone requests any form of restriction on the right of the media to report on any aspect of a court proceeding. [4] The Court concluded that seeking permission to use a pseudonym or initials constituted a restriction of access to a court proceeding of which the media ought to be notified:
To summarize, whenever a party is seeking to restrict access to a court proceeding, whether by way of seeking permission to use a pseudonym or initials, notice ought to be given to the media of that request. [5]
[16] The proposed plaintiff must therefore give notice of this motion to the media, in accordance with ss. 105 to 113 of the CPPD.
The test for permission to use a pseudonym or initials in a court proceeding
[17] Finally, the evidence on this motion falls short of what is required to displace the strong presumption of openness of the court process and public access to all aspects of court proceedings.
[18] The open court principle has been described as a “hallmark of a democratic society” and a “cornerstone of the common law”. [6] It is enshrined in the Canadian Charter of Rights and Freedoms because it is associated with the right to free expression. Members of the public must have access to the courts in order to freely express their views on the operation of the courts and on the matters argued before them. [7] The open court principle also fosters and maintains public confidence in the justice system’s integrity.
[19] The open court principle also has as a corollary the right of the media to have access to the courts and publish information on their operation and on the matters argued in the courts. It protects the media’s right to access courts in order to fulfil their role as surrogates for the public.
[20] While the open court principle is not absolute, courts have consistently required parties seeking to displace it to meet a significant legal and evidentiary burden. There is no automatic rule that allegations of sexual assault will trigger, in themselves, an exception to this principle. The sensibilities of the individuals involved in litigation are not a sufficient basis for restricting open access to the courts. [8] Where plaintiffs have advanced claims based on sexual assault or abuse, some courts have refused to grant permission to proceed anonymously (see T v. T, [2003] OJ No 132, 63 OR (3d) 188, [2003] OTC 42, 119 ACWS (3d) 405, M (S) v. C (JR), Jane Doe v. D'Amelio (“Jane Doe”), Janet Doe v. O'Connor, 2010 ONSC 1830 (“Janet Doe”)), while other courts have granted the order sought (see DC v. 371158 Ontario Ltd (cob Forest Manor), J Doe v TBH, [1996] OJ No 839, 45 CPC (3d) 1, 61 ACWS (3d) 665, MHB v AB, 2016 NSSC 137, ABC v Nova Scotia (Attorney General), 2011 NSSC 476, A.B. v. Canada (Citizenship and Immigration), 2018 FC 237). Each case turns on its own facts and on the strength of the evidence presented.
[21] The courts have applied different tests on motions such as these. Older cases have applied the the tripartite test set out in RJR- MacDonald Inc. v. Canada (Attorney General) (“RJR-MacDonald”). [9] This test requires an applicant for injunctive relief to establish, first, that there is a serious question to be tried; second, that the applicant will suffer irreparable harm if the order is not granted; and third, that the balance of convenience lies in the applicant’s favour.
[22] More recently, courts have applied the test expressed in Dagenais v. Canadian Broadcasting Corp., and R. v. Mentuck, 2001 SCC 76 (the “Dagenais/Mentuck” test). This test was designed for, and applies to, all discretionary orders that affect the openness of proceedings. [10] This test provides that a publication ban should only be granted where:
(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 accused to a fair and public trial, and the efficacy of the administration of justice. [11]
[23] This test has been applied in the context of similar motions in Ontario [12] and in other provinces. [13] In CG v Ontario (Health Insurance Plan General Manager), 2014 ONSC 5392, the Divisional Court held:
This is an important issue because an order permitting a party to use initials or a pseudonym is a form of publication ban. It is an exception to the general principle that all proceedings before the court will be open and public. That general principle was set out by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp. and has been reiterated on many occasions since. It is a general principle that is not to be easily or lightly interfered with. The Supreme Court has also made it abundantly clear that exceptions to the general rule ought not to be granted without giving notice of such a request to representatives of the media and allowing them an opportunity to be heard. [14]
Sufficiency of the evidence
[24] In Mentuck, Iacobucci J. noted that the “risk” in the first prong of the test must be “real, substantial and well-grounded in the evidence”. The moving party must show that there is a “serious danger sought to be avoided”. [15]
[25] The only evidence of risk in this motion consist of the following paragraphs in an affidavit sworn by an associate in the firm representing the plaintiff:
- I do verily believe that as further victims step forward, these matters will also continue to receive media attention. I do therefore verily believe that there is a risk that “A’s” privacy will be violated if he is not permitted to proceed by way of pseudonym.
- The Plaintiff is currently being treated by a registered psychotherapist. I do verily believe that should his name be publicized in relation to this matter, it would further exacerbate the trauma he has suffered.
[26] In Janet Doe, the plaintiff requested permission to commence an action against her doctor using a pseudonym. She alleged that the doctor had sexually abused and assaulted her. She filed her own affidavit and attached a letter from a clinical social worker with expertise in the assessment and treatment of trauma, but the letter did not address the impact that public knowledge of the lawsuit would have on the plaintiff. L.A. Patillo J. held that the plaintiff had not provided the compelling evidence required to rebut the strong presumption of openness of the courts. [16]
[27] Similarly, in C.W. v. L.G.M., 2004 BCSC 1499 [17] the Supreme Court of British Columbia dealt with a motion where the plaintiff sought leave to identify herself by initials. As here, the allegations were that the defendant sexually assaulted her and was criminally charged for the assault and he pleaded guilty to these charges. The plaintiff, as here, relied on an affidavit from her solicitor, who deposed that the plaintiff feared that “the publication of her name (…) would bring unnecessary unwanted and harmful attention on her”. Justice Joyce would have granted the order sought if the plaintiff had provided a sufficient evidentiary basis to conclude that the lack of anonymity would cause her additional harm:
- My hesitation in making the orders is related to the first condition and, in particular, whether there is a sufficient evidentiary basis to conclude that lack of anonymity will cause this plaintiff additional serious harm. […]
- It is my view that if the plaintiff is entitled to the relief sought on the basis of the evidence proffered in this case, then virtually every plaintiff claiming damages for alleged sexual abuse would be entitled to the same relief. However, on the law, as I understand it, the order should not go as a matter of course but only where it is necessary in order to achieve justice.
- I am not satisfied the plaintiff has met the burden that is on her. [18]
[28] I come to the same conclusion. That said, it is entirely possible that the plaintiff would meet his burden on the strength of a better affidavit. The motion is therefore dismissed, without prejudice to the plaintiff’s right to bring the motion again, on notice and in accordance with sections 105-113 of the CPPD.
Master Kaufman Date: June 4, 2019
[1] B (A) v Canada (Attorney General), 2016 ONSC 1571, at para 14. [2] A.B. v. Stubbs, at para 36. [3] PABD (Re), 2005 NLTD 214, at para 17. [4] M (A) v. Toronto Police Service, 2015 ONSC 5684, at para 9. [5] M (A) v. Toronto Police Service, 2015 ONSC 5684, at para 16. [6] Vancouver Sun (Re), 2004 SCC 43, at paras 23 and 24. [7] Named Person v. Vancouver Sun, 2007 SCC 43, at para 88. [8] Nova Scotia (Attorney General) v MacIntyre. [9] See Jane Doe v. D'Amelio; Janet Doe v. O'Connor, 2010 ONSC 1830. [10] Canadian Broadcasting Corp v The Queen, 2011 SCC 3, at para 13. [11] R. v Mentuck, 2001 SCC 76, at para 32 (“Mentuck”). [12] M (A) v. Toronto Police Service, 2015 ONSC 5684 and B (A) v Canada (Attorney General), 2016 ONSC 1571. [13] See for example Galloway v AB, 2019 BCSC 395; Colpitts v. Nova Scotia Barristers’ Society, 2019 NSCA 45; R.S. v. C.O., 2010 BCSC 1872; Alberta Lawyers Insurance Association v Bourque, 2018 ABQB 821 and A.B. v. Bragg Communications Inc., 2010 NSCA 57. [14] CG v Ontario (Health Insurance Plan General Manager), 2014 ONSC 5392, at para 7. [15] Mentuck, supra, at para 34. [16] Janet Doe v. O'Connor, 2010 ONSC 1830, at para 22. [17] C.W. v. L.G.M., 2004 BCSC 1499. [18] Ibid, at paras 28-30.