MOTION HEARD: 2026-14-05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALISHA BONE-KEMPT as Litigation Administrator for the Estate of OLIVIA KEMPT, ALISHA BONE-KEMPT, JAMES LENNON, THERESA LENNON and AMAYA KEMPT, by her Litigation Guardian, Alisha Bone-Kempt
Plaintiffs
- And –
JOHN DOE, PAWEL BOBER, JOHN ROE, CATHY ALLISON, JAMES DOE, JANE DOE, 1302143 ONTARIO INC. O/A BOGDAN AUTO SERVICE and THE PERSONAL INSURANCE COMPANY
Defendants
BEFORE: Associate Justice Kamal
COUNSEL: Esmé W. Ariss, for the Plaintiffs
No one else appearing
ENDORSEMENT
Does s. 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”) apply to civil litigation proceedings? I think yes. However, the analysis is a little more nuanced.
This is a motion seeking an order permitting the Plaintiffs to amend the Statement of Claim to properly name the Defendants, currently identified as John Doe and James Doe. However, the Amended Statement of Claim seeks to use initials for John Doe and James Doe.
Specifically, this motion seeks three orders:
a. leave to the Plaintiffs to amend the Statement of Claim;
b. leave for the parties to refer to John Doe by his initials, N.H., with respect to any and all court filings relating to this action;
c. leave for the parties herein to refer to James Doe by his initials, M.H., with respect to any and all court filings relating to this action; and
d. an Order that no copy of the unredacted motion materials be filed or form part of the public record.
- All three orders are related.
Background
This is a claim for damages resulting from a motorized vehicle accident which occurred on or about August 26, 2023.
The Statement of Claim was issued on August 20, 2025.
The Statement of Claim identified John Doe only as “the operator of the modified golf cart” and James Doe only as a parent and/or guardian of John Doe.
Since then, the Plaintiffs have become aware of the identity of James Doe, and have confirmed that this individual is the father of John Doe. They also have information which identifies John Doe, the operator of the modified golf cart.
The Plaintiffs now seek to properly name these individuals in the Statement of Claim.
Law and Analysis
The Use of Initials in Civil Proceedings and Consideration of Section 110 of the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)
Rule 14.06 states that 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. In an action, the title of the proceeding shall name the party commencing the action as the plaintiff and the opposite party as the defendant.
The question becomes how the requirement in r. 14.06, that the title of proceedings contain the name of all parties, should be applied in light of s. 110 of the YCJA.
Section 110 of the YCJA states:
110 (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
Limitation
(2) Subsection (1) does not apply
(a) in a case where the information relates to a young person who has received an adult sentence; or
(b) [Repealed, 2019, c. 25, s. 379]
(c) in a case where the publication of information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.
Exception
(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.
Section 110 prohibits publishing information that would identify a young person “as a young person dealt with under this Act.” The wording is broad and is not limited only to criminal court proceedings.
It is the publication of the identity of a young person that is specifically prohibited in s. 110 of the YCJA. The prohibition does not depend on a person having first seen something in a record. Rather, s. 110 says that subject to the limits in subsections (2) and (3), there is a prohibition against the publication of a young person’s name, or any other information related to him that would identify him as a person dealt with under the YCJA. See DBCFS v. L.S.K. and B.C.F., 2022 ONSC 6176, 79 R.F.L. (8th) 281, at para. 33.
The key issue is usually whether the publication would identify the person as someone dealt with under the YCJA, not whether the current proceeding itself is criminal or civil.
So to answer the question “Does s. 110 of the YCJA apply to civil litigation proceedings?”, the general answer is yes.
That said, s. 110 does not automatically make all civil proceedings involving a young person confidential. It only protects against identification connected to YCJA involvement.
Therefore, I will now consider the application of s. 110 in relation to each request made by the Plaintiff.
a. Leave for the parties to refer to John Doe by his initials
John Doe is the young person dealt with under the YCJA.
The Plaintiffs state that including the full name John Doe in the Amended Statement of Claim would violate the YCJA as it would publish the name and/or identifying information related to the young person that would identify him as a young person dealt with under the YCJA.
Interestingly, the pleadings do not actually reference whether John Doe was charged under the YCJA. However, they refer to events and the young person who is being dealt with under the YCJA.
The evidence before me on this motion is that there are numerous published articles that refer to the accident at issue in this action and make reference to a youth being charged under the YCJA.
The Supreme Court of Canada in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 SCR 567, at para. 17 states:
Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for young people’s privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular child. As a result, in an application involving sexualized cyberbullying, there is no need for a particular child to demonstrate that she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament: See R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at paras. 41, 61 and 84-87; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 170-74.
The Court of Appeal for Ontario recently recognized that children’s privacy is an important public interest. See Kirby v. Woods, 2025 ONCA 437, 177 O.R. (3d) 679. Similarly, the Supreme Court stated children’s privacy interests attract a higher level of protection than similarly situated adults: see R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 86.
In Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d) 481, Benotto J.A. emphasized at paras. 73-75 that children’s privacy rights are grounded in the CRC, which specifically provides at article 40(2)(b)(vii) that the special safeguards for children include the right to have “his or her privacy fully respected at all stages of the proceedings”. She also stated that, “[t]he child’s privacy rights, as with her other rights, are entitled to more, not less protection”: at para. 73.
Further, in P1 v. XYZ School, 2022 ONCA 571, van Rensburg J.A. found there was an important public interest in protecting the privacy of minors in litigation against their school, and that court openness would pose a serious threat to that interest: at para. 44; see also S.E.C. v. M.P., 2023 ONCA 821, at para. 65, leave to appeal to S.C.C. refused, 41121 (August 8, 2024).
I have considered that the circumstances of this action would fall within the exception under s. 110 (2) (c) of the YCJA. This exception applies where publication of the identifying information is made in the course of the administration of justice, and it is not the purpose of the publication to make the information known in the community.
In Re J.D., 2009 ONCJ 505, Justice Katarynych suggests that it would be undesirable to name a youth dealt with under the YCJA in a civil lawsuit. When referencing the aforementioned exception, Her Honour states that, “[t]he purpose of the publication may not be to make the information known to the public. The effect of publication will do precisely that”.
While I note that Justice Katarynych refused to give the applicant’s counsel specific directions on whether the youth can be named in the civil pleadings because it is not her role to advise counsel, I agree with Plaintiff’s counsel that the decision supports the proposition that it is incumbent on counsel in a civil suit to seek permission to initialize the name of the youth in the pleadings and/or to seek a publication ban to ensure that the purposes of the YCJA are fulfilled.
In my view, using the name of the young person would amount to a violation of John Doe. Therefore, it is appropriate to grant leave for the parties to refer to John Doe by his initials.
b. Leave for the parties herein to refer to James Doe by his initials
James Doe is the father of John Doe, the young person charged under the YCJA.
The Plaintiffs submit that including the full name James Doe in the Amended Statement of Claim would violate the YCJA as it would publish identifying information related to the young person that would identify him as a young person dealt with under the YCJA.
Section 110 specifically includes that no person shall publish any other information related to a young person, if it would identify the young person as a young person dealt with under this YCJA.
In this day and age, it is not difficult to put pieces of a puzzle together to identify someone's name from tidbits learned in the media and other public sources. The name of someone’s parents is a piece of a puzzle that could result in identifying the young person as a young person dealt with under this YCJA.
Although the father of the youth is not a young person dealt with under the YCJA, naming the father would indirectly provide identifying information about the youth. To prevent their identities from being revealed, it is appropriate for the young person's and his father’s names to be initialized.
c. No copy of the unredacted motion materials shall be filed or form part of the public record
This request requires considering what s. 110 means by “no person shall publish”.
The YCJA does not define the word “publish”.
However, s. 2 does define publication as the communication of information by making it known or accessible to the general public through any means, including print, radio or television broadcast, telecommunication or electronic means.
The Court record in a civil litigation proceeding is presumptively accessible to the general public.
I interpret the definition of “publication” to apply to the reference to “publish” in s. 110.
The motion materials for the within motion contain unredacted materials that contain the name and other identifying information about the youth.
Keeping this record accessible to the general public would violate s. 110.
Therefore, it is appropriate to grant an order that no copy of the unredacted motion materials be filed or form part of the public record.
The Consideration of Sherman Estate
At the commencement of the hearing, the Plaintiff’s counsel advised that they are only seeking the above-mentioned orders if I find that s. 110 applies, but they are not seeking an order as a discretionary limit on court openness.
In my view, it is incumbent upon me to consider the Supreme Court of Canada’s decisions in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, and other appellate cases with respect to requests for discretionary limits on court openness.
If s. 110 itself directly applies, then the publication ban is statutory and mandatory. In that situation, the court is primarily interpreting and applying the YCJA, not deciding whether to create a discretionary sealing or anonymization order under the common law. The Sherman Estate test is less central because Parliament has already balanced openness and privacy through the statute.
If the court is being asked for additional protections beyond s. 110, for example, sealing parts of the civil record, anonymizing parties beyond what s. 110 strictly requires, or closing hearings, restricting access to exhibits, then it is appropriate to consider the Sherman Estate test.
Primarily, having relied on the statutory publication ban, in my view, I do not need to apply the Sherman Estate test, as there is a statutory publication ban that is mandatory and automatic.
However, if I am wrong and the request of the Plaintiff is discretionary, I am satisfied that the Sherman Estate test would be met.
The Supreme Court of Canada’s decision in Sherman Estate provides guidance on the test for imposing discretionary limits on court openness, refining the test as articulated in Sierra Club of Canada.
Sherman Estate instructs that to succeed, a party seeking to limit court openness must establish that 1) court openness poses a serious risk to an important public interest; 2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and 3), as a matter of proportionality, the benefits of the proposed order outweigh its negative effects. Only where all three prerequisites have been met will a discretionary limit on court openness be properly ordered: Sherman Estate, at para. 38.
On the first component of the test, the YCJA itself demonstrates the serious risk that court openness poses to an important public interest. The YCJA exists to acknowledge that there must be a separate criminal justice system for young persons that accounts for their diminished moral blameworthiness. The Declaration of Principle set out in s. 3 of the YCJA states that this special criminal justice system must emphasize, among other things, rehabilitation and integration, and enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.
Courts have also recognized that protecting the identities of young offenders prevents stigmatization and premature labelling of youth that can result in a self-fulfilling prophecy for these individuals. Publication bans and other methods of protecting the identities of these individuals serve to maximize their chances of rehabilitation. See F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880, at para. 14 and Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, at p. 883.
Kirby v. Woods is helpful in understanding that children’s privacy is an important public interest that can justify significant limits on court openness, including anonymization, publication bans, and partial sealing.
However, I note that in Law Society of Ontario v. AA, 2026 ONCA 47, leave to appeal to S.C.C. requested, 42268, the Court of Appeal acknowledged children’s privacy interests, but ultimately, the courts may treat them as subordinate to the imperatives of public confidence, accountability, and transparency in the context of professional regulation.
In G.X. (Guardian ad litem of) v. Yukon (Government of), 2023 YKSC 10, at para. 19, the court considered publication bans of a young person in a civil proceeding. The court found that, given the combination of their status as minor children and their sensitive personal information, protecting them from the threat to their dignity that revealing this information would cause is of significant public interest in the context of assessing whether the open court principle should be restricted.
In the case at Bar, I find that court openness poses a serious risk to an important public interest, namely the inherent vulnerability of young people and the stigmatization of young people involved in the youth criminal justice system.
Therefore, the first step of the Sherman Estate test is met.
In the second step of the Sherman Estate test, the relief sought is required to prevent the risk that court openness poses to the protection of the identities of young people dealt with under the YCJA. Initializing the names of the young person and his father will ensure that their identities are not published. Civil proceedings are public, and if their names or other identifying information are published, any member of the public will be able to access them. Although the father of the youth is not a youth dealt with under the YCJA, naming the father would indirectly provide identifying information about the youth. To prevent their identities from being revealed, the young person’s and his father’s names should be initialized.
Similarly, protecting the unredacted motion record is also necessary.
The second prong of the test is satisfied.
On the third and final step of the Sherman Estate test, the salutary benefits of these limited orders outweigh any negative consequences associated with the restriction on court openness. It is more important to protect the identity of the young person, mitigate stigmitization, and promote rehabilitation than to permit open access to their identity.
The third prong of the test is met.
General Principles Regarding Amending Pleadings
The only purpose of the requested amendment is to properly name and identify John Doe and James Doe.
Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the Rules) states that “[o]n a motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”
A party requires leave of the court to amend pleadings, but leave is presumptively to be granted. With limited exceptions, amendment of a pleading is not an exercise in weighing evidence or prejudging the merits of the action. It does, however, involve examining whether, as a matter of law, the amendment raises a tenable claim and whether or not it has been properly pleaded in the sense of complying with the applicable rules. There is little point in permitting an amendment that could promptly be struck under r. 25.11. See Cadieux (Litigation Guardian of) v. Cadieux, 2016 ONSC 4446, at para. 13.
The onus of proving prejudice is on the party alleging it, unless a limitation period has expired. In the latter case, the onus shifts and the party seeking the amendment must lead evidence to explain the delay and to displace the presumption of prejudice. See Mota v. Hamilton-Wentworth (Regional Municipality) Police Services Board (2003), 2003 47526 (ON CA), 63 O.R. (3d) 737 (C.A.), at p. 748.
In my view, granting leave to amend the Statement of Claim would not result in prejudice that could not be compensated by costs. Furthermore, the amendment sought by the Plaintiffs would regularize the pleadings by complying with the Rules that require the title of a proceeding to set out the names of all parties.
Therefore, it is appropriate to grant leave to amend the Statement of Claim.
What happens if the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html) charges are withdrawn?
My reasons outlined above are rooted in s. 110 of the YCJA and the presence of the youth criminal justice proceeding.
However, it is appropriate to provide guidance on what would happen if the YCJA matter was not proceeding. For example, what would happen to this order if the charges are withdrawn?
The reading of s. 110 and this endorsement only apply to prohibit anyone from publishing the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this YCJA.
If the YCJA proceeding is not proceeding or withdrawn, and the materials in the civil litigation do not identify the young person as a young person dealt with under the YCJA, this matter shall be brought before the Court to determine if this order shall be varied, vacated, or continue to be in effect.
Notice to the Media
I asked for submissions on whether notice needed to be provided to the media.
As a matter of practice, the court should always consider whether notice should be given to the parties, the media and other directly affected individuals before implementing any measure that would limit court openness. This practice provides those affected with an opportunity to make submissions on the issue. The hearing judge ultimately has the discretion to decide whether such notice is required, and if it is, when the notice should be given: Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, at p. 837, and Kirby v. Woods, 2025 ONCA 437, at para. 25.
As I have found that the within order is rooted in s. 110 of the YCJA and the presence of the youth criminal proceeding, it is not required to provide notice to the media. This is consistent with Consolidated Civil Provincial Practice Direction of the Superior Court of Justice, dated March 17, 2026, at section 9 (111).
However, if the order is being reconsidered, counsel shall determine whether the media should be served. If they take the position that the media should not be served, they should be prepared to make submissions.
Conclusion
It is appropriate to grant leave to the Plaintiffs to amend the Statement of Claim in the form attached to the Motion Record, which included initialization and anonymization of the young person and his father.
For the same reasons, it is appropriate to grant an order that no copy of the unredacted motion materials be filed or form part of the public record.
Accordingly, I grant the following orders:
a. leave to the Plaintiffs to amend their Statement of Claim in the form appended as Schedule “A” to the Draft Order;
b. leave to the parties herein to refer to John Doe by his initials, N.H., with respect to any and all court filings relating to this action; and
c. leave to the parties herein to refer to James Doe by his initials, M.H., with respect to any and all court filings relating to this action; an Order that no copy of the unredacted motion materials be filed or form part of the public record.
- I would like to thank counsel for the Plaintiff, Ms. Ariss, for her helpful materials and submissions to the Court and for engaging with this novel issue with professionalism.
Associate Justice Kamal
DATE: May 14, 2026