Court File and Parties

COURT FILE NO.: CV-19-00613488

DATE: 20200213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: VICTOR FEDELI, Plaintiff

AND:

PATRICK BROWN, OPTIMUM PUBLISHING INTERNATIONAL, JF MOORE LITHOGRAPHERS INC. and DEAN BAXENDALE, Defendants

BEFORE: Faieta J.

COUNSEL: Tycho Manson, for the Plaintiff Eryn Pond, for the Defendant, Patrick Brown Andrea Gonsalves, for the Defendants, Optimum Publishing International, JF Moore Lithographers Inc. and Dean Baxendale (“Optimum Defendants”)

HEARD: February 10, 2020

ENDORSEMENT

[1] In this defamation action the plaintiff alleges that the defendant Brown wrote a book that was published by the defendant Optimum Publishing International which allegedly contains numerous false and defamatory statements about the plaintiff including statements that the plaintiff engaged in workplace sexual harassment. Amongst other things, it is alleged that these statements were repeated in broadcast, print and online media following the publication of his book. These allegations are denied by the defendants. They have brought an “Anti-SLAPP” motion to dismiss this action, pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), that will be heard in April, 2020.

[2] The allegations of sexual harassment that are referenced in Brown’s book were made by a woman (the “Complainant”) whose identity was not disclosed in the book and it appears that the Complainant’s identity has never been publicly disclosed.

[3] The Complainant has been involved in this action, involuntarily, as a witness summoned pursuant to Rule 39.03 by the Optimum defendants for the purposes of the pending Anti-SLAPP motion. The Complainant is fearful that she and her family will suffer serious personal, professional and reputational consequences and violations of privacy if her identity is revealed given the sensitive nature of the alleged incidents, the politically charged atmosphere around the book and these proceedings and the media interest that these proceedings have attracted.

[4] Given these circumstances, the Optimum defendants bring this motion for an order that:

• all documents already filed or to be filed in the public court file in this matter: (1) refer to the complainant only as “the Complainant” and not by her name; (2) be redacted to replace her name or initials with the words “the Complainant” or the initials (“T.C.”); and (3) be redacted to remove any information that would tend to identify the Complainant;

• an order that the same restrictions set out above apply at any oral hearings in this proceeding;

• an order that an unredacted copy of materials (that are to be redacted in order to c comply with this order) be filed under seal for use by the Court alone;

• an order that the name of the Complainant, her immediate family members, and any information that would tend to identify the Complainant or her immediate family, shall not be published, broadcast or transmitted in the public domain.

[5] The plaintiff takes no position on this motion. He submits that such position is not to be taken as assent to any of the Complainant’s factual assertions.

[6] The defendant Brown supports this motion.

[7] The Optimum defendants have provided notice of their motion to the media in accordance with the Consolidated Practice Direction. They advise that there has been no reported objection to this motion. Although two members of the media attended this motion as observers, no member of member of the media attended this motion to voice their objection.

ANALYSIS

[8] The open court principle is a fundamental principle of law that is codified by s. 135 of the CJA. Nevertheless, s. 137 of the CJA provides that a court may exclude the public from the hearing and may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record. Such order should be granted where: (1) it is necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk; and (2) the salutary effects of the order outweigh its deleterious effects: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, para. 53.

[9] The privacy interests of a person who makes an allegation of sexual assault or sexual harassment in a civil proceeding is high, particularly when she has not initiated the civil proceeding. A complainant may be subject to unnecessary trauma and embarrassment, both for herself and her family, if she is identified. Without protection of her privacy interests, a person who has been sexually assaulted or sexually harassed may be unwilling to come forward. Further, the failure to afford such protection to a person alleging sexual assault or sexual harassment may deter other persons from coming forward to report sexual misconduct. Such interests are recognized and protected in a criminal proceeding as s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, provides that an order banning publication of any information that could identify a victim of sexual assault is mandatory if sought by the Crown or victim. In my view, the policy reflected by s. 486.4 of the Criminal Code is equally applicable in these civil proceedings.

[10] Having reviewed the terms of the Order, I am satisfied that the Order is not overly broad and that the relief sought is proportionate to the risk of harm to the Complainant.

[11] Finally, I find that the salutary effects of the Order far outweigh its deleterious effects. The Order will ensure that the Complainant is not placed in the position of having to suffer a gross violation of privacy by having her identity and description of very sensitive events publicly revealed, not just in this Court but also very broadly, whether through media reports or online statements. The deleterious impacts of this Order on freedom of expression and freedom of the press are not apparent particularly given the narrow scope of the Order sought. The open court principle does not serve to feed the insatiable prurient interests of the few. The public’s ability to understand the evidence and findings in this case will not be compromised by withholding the identity of the Complainant.

[12] Accordingly, I grant the relief sought by the Optimum defendants.

Mr. Justice M. D. Faieta

Date: February 13, 2020