Court File and Parties

COURT FILE NO.: CV-19-80235

MOTION HEARD: 20190905

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

No one appearing for the Defendants

HEARD: September 5, 2019

REASONS FOR DECISION

[1] On May 28, 2019, I dismissed the plaintiff’s motion for leave to bring an intended proceeding using only his initials, without prejudice to the proposed plaintiff’s right to bring the motion again on notice, following the appropriate procedure, and with better evidence.

[2] 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. The initial notice was not made on notice, and the evidence in support consisted of a lawyer’s affidavit stating her belief that the publicity generated by this proceeding would exacerbate the trauma he has suffered. The plaintiff had also failed to comply with the relevant sections of the Consolidated Provincial Practice Direction which requires that notice to be provided to the media where a discretionary publication ban is sought.

[3] The plaintiff has addressed these issues in this motion. The defendants were served, although neither of them appeared today to oppose the motion. The plaintiff has complied with the practice direction and gave notice to the media of this motion.

[4] With respect to the evidence in support of this motion, the plaintiff filed a letter from Jen Nadon-Murray, a registered psychotherapist who has been treating the plaintiff since January 8, 2019. She believes that using the plaintiff’s real name would cause him unnecessary harm, exacerbate his current symptoms, and possibly create new symptoms. She further states that it is likely that he would not be able to cope with the litigation process, and ultimately decide not to pursue his claim.

[5] The applicable test on such motions was expressed in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76 (the “Dagenais / Mentuck” test). This test was designed for, and applies to, all discretionary orders that affect the openness of proceedings.[^1] 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.[^2]

[6] Applying these factors, I conclude that the plaintiff should be entitled to commence these proceedings using only his initials. I reach this conclusion on the strength of the plaintiff’s therapist’s recommendation, because the defendants and the media did not contest the evidence or oppose the motion, and because the relief sought is the least disruptive to the open court principle. The defendants know the plaintiff’s identity and will be able to fully respond to the allegations. The salutary effects of granting this order in this case outweigh the deleterious effects associated with a publication ban.

Master Kaufman

Date: September 5, 2019

[^1]: Canadian Broadcasting Corp v The Queen, [2011] 1 SCR 65, 2011 SCC 3, [2011] 1 RCS 65, [2011] SCJ No 3, [2011] ACS no 3, at para 13.

[^2]: R. v Mentuck, [2001] 3 SCR 442, 2001 SCC 76, [2001] 3 RCS 442, [2001] SCJ No 73, [2001] ACS no 73, at para 32 (“Mentuck”).