Court File and Parties

COURT FILE NO.: CV-24-714819 MOTION HEARD: 20240710 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: F. K., Plaintiff AND: Daniel Shakibaian, Defendant

BEFORE: Associate Justice Jolley

COUNSEL: Mark Donald, counsel for the moving party plaintiff and responding party on the defendant’s motion Amanda McInnis, counsel for the moving party defendant and responding party on the plaintiff’s motion

HEARD: 10 July 2024

Reasons for Decision

Overview

[1] Both parties seek an order permitting them to be identified by initials or pseudonyms and an order that no report or publication of this matter contain any information that would identify them. The parties have made it clear that neither of them is seeking a sealing order. Notice of the motion was given to the media and no response was received.

[2] The plaintiff sues the defendant for invasion of privacy including intrusion upon her seclusion; public disclosure of her private facts; negligence; sexual assault; sexual battery; the intentional and/or negligent infliction of mental suffering; breach of trust; breach of confidence; breach of fiduciary duty; and the tort of voyeurism. The action arises from the defendant’s taking of an intimate photo of the plaintiff while they were dating, allegedly without her knowledge or consent.

[3] The defendant does not oppose the plaintiff’s motion – provided that he is granted the same relief on his motion. The plaintiff opposes the defendant’s motion.

Analysis

The Plaintiff’s Motion

[4] The open court principle ensures public access to court hearings and to documents filed in those hearings. Sherman Estate v. Donovan, 2021 SCC 25 sets out the test to be met before an order that abrogates from that principle is granted. To succeed, the moving party must show:

(a) that court openness poses a serious risk to an important public interest; (b) the order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and (c) as a matter of proportionality, the benefits of the order outweigh its negative effects.

[5] In considering what constitutes an important public interest under the first prong of the test, Sherman Estate held that the protection of victims of sexual misfeasance falls within such an interest, holding:

the question is not whether the information in question is “personal” to the individual but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting…. Protecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test…. That interest will be undermined when the information reveals intimate or personal details about an individual - their "biographical core”…. This is characterized as information that reveals something intimate and personal about the individual, their lifestyle or their experiences (paragraphs 33, 38, 73, 75 and 77).

[6] The Sherman Estate court concluded that subjection to sexual assault or harassment met this high threshold as it fell within the scope of “sensitive personal information that, if exposed, could give rise to a serious risk” to the core aspects of a person’s private life, and dignity and engages an important public interest. (see Fedeli v. Brown, 2020 ONSC 994 at paragraph 9 referenced in Sherman Estate, supra at paragraph 77). I find that the court openness poses as serious threat to the plaintiff as an alleged victim of sexual assault.

[7] I am satisfied that the circumstances of this case also meet the second prong of the Sherman Estate test. The relief sought does not extend to a sealing order but goes only as far as is necessary to protect the plaintiff’s privacy by anonymizing her name and removing any information that might identify her.

[8] The defendant has not argued that the order sought by the plaintiff is unnecessary to protect her personal privacy. He argues that her privacy cannot adequately be protected unless his is protected, too, as they were a known couple. The plaintiff has responded that identifying the defendant will not identify her. She indicated that the defendant had a number of other relationships during the same time period and that she had limited interaction with his circle of friends. She is satisfied that her identity will not be discovered if the defendant is not anonymized, and I am also satisfied that the risk is low and one she is prepared to take.

[9] Lastly, I am satisfied that the benefits of the order sought by the plaintiff outweigh its negative effects both to her and to the public interest. On the public interest side, one of the benefits of an anonymization order is that it helps to lessen the trauma felt by victims of sexual assault and encourages them to report sexual misconduct. As held by Faieta, J. in Fedeli, supra at paragraph 9:

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] Considering this specific plaintiff, she deposed that when she discovered the intimate photograph taken by the defendant allegedly without her consent, she became depressed, had panic attacks and suffered suicidal ideation. There is evidence before me that the plaintiff believes she is at risk of being stigmatized, bullied and harassed if were her name to be made public.

[11] Applying the principles in Sherman Estate, the plaintiff’s motion is granted.

The Defendant’s Motion

[12] Turning to the defendant’s motion, I am not satisfied that honouring the open court principle in these circumstances would put an important public interest at risk, or that disclosure of the allegations would be a “affront to [the defendant’s] dignity that society as a whole has a stake in protecting”, as stated in Sherman Estate, supra at paragraph 33. It is not, in my view, “information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings” (supra, at paragraph 34).

[13] Various courts post Sherman Estate have held that damage to reputation arising from allegations of sexual misconduct do not justify the anonymization of a defendant in a civil action. In Jane Doe (#24) v. Newfoundland and Labrador, 2022 NLSC 158, the plaintiff sued the crown for sexual assault by a police officer in its employ. The court denied the police officer’s motion for a publication ban, finding that he did not establish that, in the absence of the publication ban, the open court principle would operate to put an important public interest at risk. It held that the civil action raised matters of general public interest and concern, and the negative effects of imposing a publication ban would outweigh its positive benefits. The court distinguished pre-Sherman Estate cases that had granted publication bans on the names of defendants in civil sexual assault cases on the basis that they would suffer irreparable harm to their reputations (the “protection of the innocent” argument), holding that:

[66] In my view Sherman Estate has now settled the question of when the privacy concerns of an affected person can amount to a valid important public interest sufficient to override court openness. The law is that an exception to the open court principle on the basis of protection of privacy may only be made where a narrower dimension of personal privacy, the protection of human dignity, is placed at serious risk by reason of the dissemination of sufficiently sensitive information. Furthermore, this public interest must be understood as only applying in limited cases in order to protect the open court principle (Sherman Estate, paragraph 63).

[14] This defendant alleges that, not only do the allegations made in the statement of claim go to his “biological core”, allowing the allegations to remain public would harm his employment interests as he works in a business owned by women and in the field of minor hockey, where public trust is important.

[15] This argument was rejected by the court in R.R. v. Newfoundland and Labrador, 2022 NLSC 46, leave to appeal to the Supreme Court of Canada denied, (“RR”), an application by R.R. for an order banning publication of his name as an accused in a criminal sexual assault matter. R.R., a prominent lawyer, argued that publication of his name would have a devastating impact on his law practice and that of his associates and would virtually end his career. He also argued that publication of his name would have a significant social, psychological and emotional impact on him and cause irreparable harm to his reputation. The court held that RR had “failed to identify a serious risk to an important public interest posed by the open court principle”. It held that “the interests he has identified are personal in nature: the right to privacy, potential embarrassment to him, his family and his law firm and potential loss of business by way of referrals” (paragraph 45). These concerns did not equate to the type of information that would, if exposed, give rise to a serious risk to personal dignity, such as “stigmatized medical conditions, stigmatized work, sexual orientation and subjection to sexual assault or harassment” (paragraph 69, referencing paragraph 77 of Sherman Estate).

[16] Lastly, the RR court held that the applicant’s concerns about his livelihood and that of his associates and employees in the event of publication were “personal and private being principally financial in nature” (paragraph 70).

[17] The court in RR concluded at paragraph 72:

I reject the Applicant's assertion that the release of his identity on the facts of this case attack his biographical core. The information which would be revealed is his name and the fact that he is being charged with a number of sexual offences. While it would undoubtedly be embarrassing, it does not impact his biographical core. It does not raise a serious risk to an important public interest. It does not reach the "high bar" established in Sherman Estate and the authorities cited therein. The interests of the Applicant engaged in this case are purely private and personal.

[18] These same comments apply to the defendant’s argument in his case and favour dismissal of his motion.

[19] The defendant argues that the plaintiff has seriously overreached on her allegations and will be unsuccessful at trial. Meanwhile, he will be harmed by these unsubstantiated and egregious allegations being known to the public. The court in RR also rejected this assertion, stating at paragraph 85: “As already noted above, the presumption of innocence is not designed to protect an accused from the publication of embarrassing personal information.”

Conclusion

[20] For the reasons set out above, the plaintiff’s motion is granted and the defendant’s motion dismissed. The parties have agreed on the form of order that will appropriately anonymize the plaintiff but allow the defendant to appropriately respond.

[21] The interim publication ban made 13 June 2024 expires upon release of this decision.

Costs

[22] The parties’ bills of costs were in a similar range. I find it reasonable for the defendant to pay the plaintiff costs in the amount of $11,676.86 inclusive of disbursements and HST, on a partial indemnity basis, within 30 days of today’s date.

Associate Justice Jolley Date: 29 July 2024