SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jane Doe and John Doe by his Litigation Guardian, Jane Doe v. Conseil Scolaire Viamonde and Sylvain Gagnon
DATE HEARD : February 20th 2026
BEFORE : Associate Justice Eckler
COUNSEL: A. Reid Taylor appearing for the plaintiffs/moving parties
J. Rocque and H. Eid appearing for the defendants/responding parties
REASONS FOR DECISION
Nature of the Motion
[1] The plaintiffs Jane Doe and John Doe by his litigation guardian, Jane Doe, seek an order permitting them to be identified by initials or pseudonyms and an order that all court documents be redacted to remove any identifying information. The plaintiffs further request an order that the redacted documents shall be publicly available and that the unredacted court documents shall be sealed.
[2] The plaintiffs also initially requested an order that no report or publication of this matter contain any information that would identify them. In advance of the hearing date of this motion, the court raised with the parties the issue of whether or not an Associate Judge has jurisdiction to grant a publication ban. In this regard, in Mother Doe v. Havergal College, 2020 ONSC 2227 the Court referred to “an order banning publication being made pursuant to the court’s “inherent jurisdiction”. The Court also referred to a publication ban as “injunctive relief” (Mother Doe, at p.1 and paras. 46, 47)
[3] An Associate Judge does not have inherent jurisdiction or authority to grant injunctive relief. Associate Judges only have the jurisdiction granted to them by statute, including the Rules of Civil Procedure. (Blue v. Metro Ontario Inc., 2022 ONSC 1283 at para.22, Aenos Food Services Inc. v. Tierney et al, 2026 ONSC 1478 at para.18, D’Eon v. Hosseini, 2021 ONSC 7560 at paras. 82 and 83)
[4] Having regard to the jurisdiction issue raised, the plaintiffs declined the option to have their motion heard before a Judge who could grant the initially requested publication ban. The plaintiffs confirmed that they wished to proceed with their motion before an Associate Judge and the requested relief on this motion was confirmed to be amended to remove the request for a publication ban.
[5] This court directed the plaintiffs to provide notice to the media of the date and time of this motion. No media outlets attended the hearing of this motion.
Overview
[6] The plaintiff, Jane Doe is a practicing lawyer and is the mother and litigation guardian of John Doe, who is a minor. Jane is divorced from John's father and they share joint custody of John.
[7] Prior to July 2021, John attended an elementary school (“the School”) which is part of the Conseil Scolaire Viamonde School Board. (“the defendant School Board”) The defendant, Sylvain Gagnon, was the principal of the School from September 2018 until the end of June 2021, the material time period when John attended the School.
[8] Following her divorce from John’s father, Jane describes being involved in an abusive relationship with an Ex-Partner (not John’s father). Jane characterizes this relationship as being marred by harassment and intimidation with themes of violence also permeating the dynamics in the relationship.
[9] She describes that from the beginning of her relationship, the Ex-Partner, who was 13 years her senior and wealthy, used intimidation tactics to exacerbate the power imbalance between them, employed a threatening and aggressive communication style and frequently referred to physical violence in her presence which caused Jane to fear for her safety. The Ex-Partner often highlighted his connections to organized crime in Toronto and to his cousin who could “snuff” or hurt people.
[10] When John was eight years old, without Jane’s knowledge or consent, the Ex-partner showed John a video of himself using a gun at target practice. ( the “gun incident”) When Jane raised the gun incident with the Ex-partner, he refused to show her the video. It is Jane’s evidence that as a result of the Ex-partner's behaviour, Jane experienced severe emotional and psychological distress and began to fear for her own physical safety and that of her son’s. Shortly after the gun incident, Jane contacted John’s school via email to inform the school that the Ex-Partner was no longer authorized to pick John up from school.
[11] At around this same time, in early 2018, Jane’s relationship with the Ex-Partner ended. Due to the nature of the relationship, when Jane and the Ex-Partner parted ways, Jane feared for her safety and that of her son and she therefore undertook steps to protect her identity and the identity of her child, the minor plaintiff, John Doe. In addition to Jane taking steps to ensure that the Ex-Partner could no longer pick John Doe up from school, Jane was required to move to distance herself from the Ex-Partner. Jane’s employer was aware of her situation and granted Jane paid days off in 2018, to move, pursuant to the domestic violence leave section under the Employment Standards Act. Jane also moved twice to conceal her address from the Ex-Partner.
[12] Jane’s evidence is that since 2018, she has undertaken efforts to limit the accessibility of her own, and her son’s identifying information from public forums such as social media. Jane’s evidence is that she fears that if the Ex-Partner were to find out where she and John live, or locate them through other means, their psychological and physical safety could be compromised.
[13] In September 2018, several months after Jane’s relationship with the Ex-Partner ended, when John was in grade four, and in primary school, the School requested that all parents sign a consent form. Jane alleges that in order for John to participate in certain elements of school life, such as class photographs, the School required Jane to consent to all possible uses and disclosures of John’s personal information and photographs including on the internet and social media.
[14] Given her concerns relating to the Ex-Partner, Jane submitted the consent form but chose not to authorize the School’s use of information permitting the identification of John as specified in the Consent Form. Jane did authorize the inclusion of John in his Grade 4 group class photo.
[15] Jane alleges that after she submitted the Consent Form, the School refused it by email. In the email response refusing the plaintiff’s Consent Form, the School referred to a new school board policy, which created the "all or nothing" position that parents and legal guardians must consent to any use, publication, dissemination or disclosure of their child's personal information in such forums/media for all the purposes specified, or none at all, and that, without the Consent Form authorizing such use of the child’s personal information, the child would not be included in his group class photo.
[16] After receiving the School’s email response, and wanting her son to be included in the class photograph, Jane submitted a new Consent Form the next day, on September 25, 2018, this time authorizing the use of John’s personal information in conformity with the Consent Form.
[17] On September 26, 2018, the class photos were taken and John was included in his Grade 4 group class photo. The day after the photo was taken, Jane rescinded her consent, as the Consent Form stated that the consent would be valid unless written notice to the contrary was received. Jane’s reasoning was that any use of the child’s personal information going forward should not be permitted, but she agreed with the inclusion of her son in the group class photo.
[18] On October 26, 2018, the Principal advised Jane that the School had chosen to blur John’s face from the Grade 4 group class photo that would be distributed to the students and their families in the upcoming days.
[19] Jane and the School then engaged in a series of discussions and interactions relating to the School’s decision to blur John’s face and the issue of whether or not parents should be permitted to provide partial authorization to disclose a student’s personal information where a specific situation might require such accommodation.
[20] Jane’s position is that the broad nature of the Consent Form puts her and John at heightened risk of further threatening conduct, verbally and/or emotionally abusive conduct, harassing conduct, or, at, worst, a violent encounter with Jane’s Ex-Partner.
[21] When no consensus was reached on the issues in dispute, by way of notice of action issued on April 26th 2021, and statement of claim served on March 26th 2021, the plaintiffs commenced this action against Sylvain Gagnon and the Conseil Scolaire Viamonde (the "defendants"), alleging that the defendants violated their rights under ss. 2(a), 2(b) and 7 of the Canadian Charter of Rights and Freedoms, and for committing the torts of misfeasance in a public office, intentional infliction of mental and emotional suffering and intrusion upon seclusion.
[22] In this action, the plaintiffs seek a declaration that their rights protected by ss. 2(a), 2(b) and 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11 ("Charter") have been breached, damages in the amount of $100,000 under s.24(1) of the Charter, special damages in an amount to be specified, aggravated damages in the amount of $50,000 and punitive damages in the amount of $50,000.
[23] The plaintiffs also seek orders requiring the defendants to disclose the original, unredacted, Grade 4 group class photo of September 2018 to the plaintiffs and for an order that the defendant School Board change its personal-information-use consent form entitled “Authorization To Use Student Personal Information" and privacy policies, practices, and procedures in a manner that allows individuals to manage their own personal data and have control over the collection and use of their personal information.
[24] It is against this backdrop that the plaintiffs seek an order permitting them to be identified by pseudonyms and for an order that court documents shall be redacted to remove identifying information. The plaintiffs further seek an order that redacted documents shall be publicly available and unredacted court documents shall remain sealed.
[25] Having regard to the test outlined in Sherman Estate v. Donovan 2021 SCC 25, the plaintiffs argue that in the immediate case, the circumstances pose risks to four important public interests that are sufficiently serious to justify intruding upon the open court principle: (i) the public interest in personal physical safety, (ii) the public interest in personal privacy, (iii) the public interest in protecting the identities and privacy of minor parties to litigation and (iv) the public interest in the administration of justice. The plaintiffs argue that the risks are sufficiently serious to overcome the presumption of court openness. The plaintiffs maintain that no reasonably alternative measures are available to prevent the risk and that the benefits of the proposed order outweigh any deleterious effects.
[26] The defendants oppose the plaintiffs’ motion and argue that the plaintiffs have not met the necessary requirements for imposing discretionary limits on court openness. The defendants contend that the plaintiffs have not shown that there is a serious risk to an important public interest, that other reasonable measures would not eliminate that risk, or that proportionality weighs in favour of the orders sought. The defendants argue that given the lack of objective and convincing evidence from the plaintiffs regarding the need for the orders sought, the plaintiffs’ motion should be dismissed.
Evidence
[27] In support of this motion, Jane has filed an affidavit wherein she has provided evidence of how the nature of her relationship with the Ex-partner made her feel unsafe and made her fear for the emotional and physical well-being of her son. Jane has provided evidence of how she acted on this fear by physically removing herself and her son from the shared living space with the Ex-partner. Jane has also provided evidence of the harassment and hostility from the Ex-partner that occurred following their separation and how this has informed the privacy and safety concerns that she has for herself and her son. Jane has also described the emotional harm that she and her son will suffer if their identities are disclosed in this proceeding.
[28] In support of this motion, Jane also relies on a letter dated May 16th 2022, prepared by her treating therapist, Pamela Wilansky, Ph.D., C.Pysch. (“Wilansky letter”) The Wilansky letter is appended as an exhibit to Jane’s affidavit. Pamela Wilansky has provided evidence via letter in support of the present motion. Pamela Wilansky indicates that Jane has been attending monthly therapy sessions with her, beginning on June 11th 2021. The purpose of the therapy is to provide support and assist Jane to process stressors in her life, including past traumatic events. Wilansky's letter outlines that in addition to threats against herself and John, Jane has suffered other "particularly traumatizing and deeply personal" incidents involving the Ex-partner that are not yet of record. This letter states that it is Wilansky's professional opinion that the publication of personal information that would allow Jane to be identified in this context would be "especially traumatic" and "cause her significant emotional distress”. The Wilansky’s letter states that “without detailing particular incidents, Jane has experienced many boundary violations and traumas such that having her name made public in this case along with further details that may arise, would cause her significant emotional distress”.
[29] In response to this motion, the defendants rely on the affidavit of Jason Rodrigue. Mr. Rodrigue has been an employee of the Viamonde School Board since September 2002 and currently holds the position of Superintendent of Corporate Services and Treasurer.
[30] Mr. Rodrigue has provided evidence relating to internet searches conducted which reveal on-line information about Jane, including her employment, her place of work and office address, as well as personal information about her, including her photo.
[31] Jane has also published an article on-line providing particulars of the dispute between the plaintiffs and the School. In this article, Jane details her concerns about her son’s class picture and the protection of his privacy, which the defendants contend contradicts her current position of wanting to maintain confidentiality.
Legal Framework and Analysis
Applicable legislation
[32] It has been said that “one cornerstone of the rule of law in Canada is the operation of an open and transparent court system”. (C.L.B. v. J.B., 2009 CanLII 33033 (ONSC) at para. 7). In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 at para. 52, the Supreme Court of Canada described the open court principle as “the very soul of justice”. It is for this reason that Court proceedings are presumptively open to the public.
[33] The presumption of court openness in civil proceedings in Ontario is expressly set out in the Courts of Justice Act, R.S.O. 1990, c. C.43. Sections 135(1) and (2) of the Courts of Justice Act, read together, provide that court hearings are open to the public unless “the possibility of serious harm or injustice to any person justifies a departure” from the open court principle.
[34] Section 137 of the Courts of Justice Act, similarly, sets out the presumption that documents filed in civil proceedings are public, unless the court orders that they be treated as confidential, sealed and not form part of the public record. (P1 v. XYZ School, 2022 ONCA 571 at para. 32) However, the Courts of Justice Act does not set out criteria to be met for a sealing or confidentiality order to be granted. Instead, the relevant test has been confirmed by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361.
[35] Rule 2.03 of the Rules of Civil Procedure grants the court discretion "where and as necessary in the interest of justice, [to] dispense with compliance with any rule at any time." Rule 2.03 accordingly, subject to meeting the Sherman Estate test for discretionary limits on court openness, enables courts to dispense with Rule 14.06, which requires that the names of the parties be identified in the title of proceedings.
[36] Any request to restrict access to court proceedings, regardless of the scope of the restriction sought, “engages foundational principles of court openness and freedom of expression under s. 2(b) of the Charter.” (Kirby v. Woods, 2025 ONCA 437 at para.6).
[37] As highlighted in Kirby, the open court principle has been hailed as “a cornerstone of the common law” and a “hallmark of a democratic society”. (Kirby at para.6)
[38] In Sherman Estate v. Donovan 2021 SCC 25, the Supreme Court of Canada emphasized that limits on court openness in recognition of other public interests have been sparingly recognized and always with a view to maintaining the strong presumption that justice should be in public view. (Sherman at para. 30).
[39] While the importance of the open court principle cannot be overstated, court openness is not absolute. The Supreme Court of Canada in Sherman Estate and the Ontario Court of Appeal in Kirby have underscored that limits on court openness are sometimes required in order to “safeguard other core values and principles”. (Kirby, at para. 7, Sherman Estate at para. 3).
[40] In Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court of Canada confirmed the applicable test when a party is seeking to impose limits on court openness. Sherman Estate instructs that in order for the plaintiffs to succeed on this motion, they must establish the following:
court openness poses a serious risk to an important public interest;
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. (Sherman Estate, at para. 38)
[41] This test applies to all discretionary limits on court openness, including anonymity and confidentiality orders, subject only to valid legislative enactments. (Sherman Estate, at para. 38) All three prerequisites must be met before a discretionary limit on court openness may be ordered. (Sherman Estate, at para. 38, Kirby, at para 16)
[42] Parties seeking to impose limits on court openness may avail themselves of a spectrum of “restrictive tools” which includes a complete or partial sealing order, temporary or permanent publication ban, initialization, redaction of identifying information, anonymization, or any combination thereof as may be appropriate in a specific case. (B.v.G 2025 ONSC 6347 at para.44)
[43] On this motion, the onus is on the plaintiffs to demonstrate that the benefits of the order they seek outweigh the deleterious effects. (Kirby, at para. 24)
Application to This Case
Plaintiffs’ Position
[44] In this motion, the plaintiffs Jane Doe and John Doe move for an anonymity order and partial redaction order to protect their personal and identifying information in the context of their action against the defendants, Sylvain Gagnon and the Conseil Scolaire Viamonde.
[45] The plaintiffs argue that the circumstances of the immediate case pose risks to four important public interests that are sufficiently serious to justify intruding on the open court principle. The four important public interests identified by the plaintiffs are as follows:
The Public Interest in Protecting Personal Privacy and Individual Dignity from the Exposure of Private Information
The Public Interest in Protecting Children’s Privacy
The Public Interest in Personal Physical Safety
The Public Interest in the Administration of Justice
[46] The plaintiffs frame this case as one involving concerns of significant importance, being the plaintiffs’ right to control their personal information. Underlying the plaintiffs’ consciously held belief that they should have meaningful control over who has access to their personal information is Jane’s desire to shield her identifying information and that of her child’s, in order to protect them from threats of physical harm, harassment and intimidation from her Ex-Partner and to protect their privacy interests.
Defendants’ Position
[47] The defendants frame this case in a significantly different manner and suggest that this case involves a relatively simple and discrete issue relating to a dispute over a school consent form which the plaintiffs maintain is too broadly worded.
[48] The defendants argue that on this motion, the plaintiffs have provided insufficient evidence to demonstrate that there is a serious risk to an important public interest due to the openness of the proceedings in this case. The defendants maintain that the plaintiffs have failed to adduce the required evidence to satisfy any of the three prerequisites outlined in Sherman Estate. They argue therefore that a discretionary limit on court openness should not be ordered in this case.
[49] The defendants contend that Jane’s position on this motion wherein she seeks to maintain confidentiality is inconsistent, as she has chosen to make her concerns public by publishing an article online. (“the article”)
[50] The defendants also highlight that Jane’s academic background and occupational history are easily accessible online. The defendants argue that Jane’s decision to voluntarily publish this information, including the article, vitiates the argument that a serious threat to the plaintiffs’ safety would arise if the orders sought in this motion are not granted.
[51] The defendants further highlight that that the mere fact that a minor is a party to a legal proceeding does not result in the conclusion that a serious risk emerges. The defendants’ position is that the main action relates to the John’s absence from a class picture or the consent given by Jane. The defendants argue that this action does not involve allegations of sexual assault, serious violence or criminal charges involving a minor.
[52] The defendants refer this court to S.E.C. v. M.P. 2023 ONCA 821 where the Ontario Court of Appeal considered appeals relating to the scope and limits of the open court principle in the context of the court approval of settlements involving minor parties or parties under disability as required by r. 7.08 of the Rules of Civil Procedure. In particular, both appeals concerned the denial of sealing orders over motion records for r. 7.08 settlement approvals. The Ontario Court of Appeal dismissed both appeals as the moving parties failed to meet the Sherman Estate test. The Court also noted the absence of a serious risk to the minor involved.
[53] The defendants also argue that the “risks” raised by the plaintiffs remain purely speculative and are not supported by objective and tangible evidence. In C.L.B. v. J.B. 2009 CanLII 33033 (ONSC) the court noted that a subjective assessment or risks or vulnerabilities, without clear and objective evidence, is not sufficient to overcome the strong presumption of openness of court proceedings. (C.L.B. v. J.B., 2009 CanLII 33033(ONSC) at para. 17).
[54] The defendants highlight that in M.E.H. v. Williams 2012 ONCA 35 the Ontario Court of Appeal confirmed the importance of an expert opinion where serious physical or emotional harm is being alleged:
The distinction between personal emotional distress and embarrassment, which cannot justify limiting publication of or access to court proceedings and records, and serious debilitating physical or emotional harm that goes to the ability of a litigant to access the court is one of degree. Expert medical opinion firmly planted in reliable evidence of the specific circumstances and the condition of the litigant will usually be crucial in drawing that distinction: see P.A.B.D. #1 (Re), [2005] N.J. No. 394, 2005 NLTD 214, S.C. (T.D.) at para. 43. (M.E.H v. Williams 2012 ONCA 35 CanLII at para. 30)
[55] The defendants also object to the admissibility of the Wilansky letter on the basis that the manner in which it has been proffered to the court, as an exhibit to Jane’s affidavit, constitutes hearsay evidence and as such is inadmissible.
[56] The defendants further highlight that the alleged harassment from the Ex-Partner occurred in 2018 and that there is no current evidence of any risk of threat from the Ex-Partner.
Analysis
[57] With respect to the first prong of the Sherman Estate test, there is no closed category of “competing interests” that may appropriately constitute an “important public interest”. (Sherman Estate, at para. 42)
[58] In Sherman Estate, it was confirmed that the identification of what constitutes an important public interest can be accomplished in the abstract, having regard to the application of general principles that are not confined to the interests of the parties in the particular case being examined. However, the determination of whether or not the interest is at “serious risk”, must be made having regard to the facts of the given case. In this regard, in Sherman Estate, the Supreme Court of Canada provided as follows:
42… courts must be "cautious" and "alive to the fundamental importance of the open court rule" even at the earliest stage when they are identifying important public interests … Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute … By contrast, whether that interest is at "serious risk" is a fact‑based finding that, for the judge considering the appropriateness of an order, is necessarily made in context. In this sense, the identification of, on the one hand, an important interest and, on the other, the seriousness of the risk to that interest are, theoretically at least, separate and qualitatively distinct operations. An order may therefore be refused simply because a valid important public interest is not at serious risk on the facts of a given case or, conversely, that the identified interests, regardless of whether they are at serious risk, do not have the requisite important public character as a matter of general principle. (Sherman Estate, at para.42)
[59] In my view, three of the public interests identified by the plaintiffs have the requisite important public character at the level of general principles.
The Public Interest in Personal Physical Safety
[60] In Sherman Estate, the Court recognized that a risk to physical safety is an important public interest. (Sherman, at para. 86)
[61] As an alleged victim of harassment at the hands of her Ex-Partner, Jane fears for her physical safety and that of her child if identifying information is made public. I find that the public interest in protecting individuals from physical harm is engaged.
Public Interest in Protecting Individual Dignity from the Exposure of Private Information
[62] Court openness is not absolute. In some cases, privacy interests may constitute an important public interest which merits placing limits on the open court principle. (Kirby, at para. 17)
[63] In Sherman Estate, the Supreme Court of Canada recognized that proceedings in open court can lead to the dissemination of highly sensitive and personal information that can result in not only discomfort or embarrassment but also in an affront to the affected person’s dignity. (Sherman Estate at para 65). An important public interest is engaged where a breach of privacy threatens a person’s dignity resulting in the revelation of aspects of the individual’s “biographical core”. (Sherman Estate at paras. 72-75, Kirby at para 17).
[64] The critical consideration is whether the information “reveals something intimate and personal about the individual, their lifestyle or their experiences”. (Sherman Estate, at para. 77) In Kirby, the Ontario Court of Appeal confirmed that information that could give rise to a serious risk to an important public interest “may include subjection to sexual assault or harassment or detailed information about family structure”. (Kirby, at para.17) Further a risk to some aspects of privacy may be tied to a risk of psychological harm. (Kirby at para 17, Sherman Estate at paras. 54, 77)
[65] The plaintiffs argue that the public interest in protecting individual dignity from the exposure of private information is engaged. The plaintiffs maintain that the litigation of the underlying action will require Jane to divulge intimate and personal details regarding the history of her relationship with the Ex-Partner that strike at Jane's biographical core.
66I accept that the nature of this litigation will require an examination of Jane’s allegations of harassment and threats made by the Ex-Partner. I therefore find that the public interest in protecting individual dignity from the exposure of private information is engaged as well as the public interest in protecting the identities and privacy of minor parties to litigation.
Children’s Privacy Is an Important Public Interest
[67] Minors are “especially vulnerable to intrusions of privacy”. (Sherman Estate at par 92, Kirby at para.18).
[68] The Ontario Court of Appeal in Kirby at para. 18, highlighted that the inherent vulnerability of minors has long been recognized in Canada. The Court stated the following:
This inherent vulnerability is confirmed and recognized in multiple legislative contexts across Canada. As stated by Abella J. in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para 17:
Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in the protection of 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 on the sensitivity of the particular child … The law attributes the heightened vulnerability based on chronology, not on temperament.
[69] Children’s privacy interests are afforded a higher level of protection than similarly positioned adults. (Kirby at para. 19) Our courts, at all levels, have recognized the importance of protecting children’s privacy interests. (Kirby at para. 20).
[70] In S.E.C. v. M.P ., the Ontario Court of Appeal observed that the "inherent vulnerability of children" has been recognized for purposes of the first prong of the Sherman analysis. (S.E.C. v. M.P. 2023 ONCA 821 at para. 66)
[71] In P1 v. XYZ School, the Ontario Court of Appeal held that the protection of the identities of minor litigants is "an important public interest," which was threatened by court openness in that case due to risks of psychological harm and reputational damage to the minor parties, and which satisfied the first branch of the Sherman Estate test. (P1 v. XYZ School, 2022 ONCA 571 at para. 44) In P1 v. XYZ School, the Court accepted that the identities of the minor parties and their litigation guardians should be anonymized. (P1 v. XYZ School, at para. 27)
[72] The Ontario Court of Appeal has recognized the public interest in the protection of the identities of minors who are made parties to litigation, including in contexts where the minor person is a witness, a criminal accused or civil defendant. (S.E.C. v. M.P. 2023 ONCA 821 at para.65)
[73] The plaintiffs contend that the public interest in protecting the identities and privacy of minor parties to litigation is engaged. The events of the underlying action took place while John was in elementary school, and he is still a minor. They argue that Jane’s stated concerns of harassment and violence extend to John. As an example, Jane highlights the gun incident where the Ex-Partner showed John a video of him using a gun.
[74] John’s involvement in the immediate case is two-fold. First, he is involved as the consent form in issue relates to his information. Second, John is involved as Jane is seeking to limit the disclosure of the plaintiffs’ private information given Jane’s fears for her safety and that of her child’s relating to the allegations of harassment from the Ex-Partner. John’s role in this litigation is prominent. John is a minor. Recognizing that the law attributes heightened vulnerability based on chronology, not on temperament, I accept that the underlying facts and allegations which this litigation raises could well be distressing to John, particularly if he were to be identified personally. (Kirby at para.18)
[75] I accept that the nature of this litigation will require an examination of Jane’s allegations of harassment and threats made by the Ex-Partner. Jane’s evidence is further that the defendants’ actions forming the basis of this litigation have caused the minor plaintiff to experience severe anxiety and emotional distress.
[76] I find that the public interest in protecting the privacy of minor parties to litigation is engaged.
Are the accepted matters of important public interest a serious risk on the facts of this case?
[77] The plaintiffs maintain that the litigation of the underlying action will require Jane to divulge intimate and personal details regarding the history of her relationship with the Ex-Partner that strike at Jane's biographical core. As the underlying action concerns an issue relevant to many Canadian families, being parents' and guardians' consent to schools' use of their children's personal information, the plaintiffs argue that there is likely to be significant public interest in, and reporting on, the action. They contend that the dissemination of highly sensitive information regarding Jane's previous relationship would cause Jane serious psychological and emotional distress which would also extend to John.
[78] The plaintiffs further highlight that the underlying action arises from Jane's attempts to control the use and dissemination by the defendants of her son John's personal and identifying information. These attempts were motivated by Jane's desire to protect herself and John from harassment, intimidation, threats, aggression and/or violence by Jane's Ex-Partner. The plaintiffs maintain that the publication, through the underlying action, of personal information relating to Jane and John would expose Jane and John to a serious risk of emotional, psychological and/or physical harm to the extent it permits the Ex-Partner to identify or locate them.
[79] With respect to the issue of whether or not the stated important public interests are a serious risk on the facts of this case, there is merit to the defendants’ argument that the manner in which Wilansky’s evidence has been tendered to this court raises concerns with respect to its admissibility. However, I find that, even without relying on the evidence of Pamela Wilansky, Jane’s evidence is sufficient to identify objectively discernable harm on the basis of logical inference.
[80] In B. v. G., the Divisional Court confirmed that the failure to adduce expert or medical evidence does not result in the conclusion that the alleged risk is merely speculative. (B. v. G. 2025 ONSC 6347 at para. 51) In Sherman Estate, the Supreme Court of Canada recognized at para. 103 that “applicants do not necessarily need to retain experts who will attest to the physical or psychological risk related to the disclosure”.
[81] In Sherman Estate, the Supreme Court of Canada further confirmed that “direct evidence is not necessarily required to establish a serious risk to an important interest”. (para.97). In this regard, the Supreme Court of Canada stated the following:
Our Court has held that it is possible to establish the existence of objectively discernible harm based on logical inferences ( Bragg , paras. 15-16). However, this inferential reasoning does not permit inadmissible conjectures. An inference must still be based on objective circumstantial facts that reasonably allow the conclusion to be drawn by inference. When the conclusion cannot reasonably be drawn from the circumstances, it amounts to conjecture ( R. v. Chanmany , 2016 ONCA 576 , 352 OAC 121, para. 45 ) (Sherman, at para.97)
[82] The defendants urge this Court to accept their arguments that the suggestion of harassment or physical threats from the Ex-Partner do not present a real risk for various reasons including that the last evidence of the alleged threats occurred in 2018. The defendants highlight that there is no evidence before the court of any recent threats from the Ex-Partner.
[83] It is acknowledged that there is no evidence of recent threats or intimidation from the Ex-Partner. However, the evidence in the record is that Jane has gone to great lengths, including initiating this lawsuit, and this motion, to protect her personal information and that of her son’s in order to shield this information from the Ex-Partner. It may very well be that the lack of evidence relating to more recent threats from the Ex-Partner is rooted in the significant efforts undertaken by the plaintiff to protect her personal information.
[84] In the immediate case, I find that the lack of evidence relating to more recent threats or harassment should not militate against a finding that the important public interest in physical safety is a serious risk that is engaged. As stated in paragraph 37 of A.P. v. L.K. 2019 ONSC 4010, with respect to potential stigmatization of children in the community relating to their involvement in litigation, and again re-iterated by Justice Myers in Mother Doe v. Havergal College 2020 ONSC 2227, at para. 41 “we should not have to wait for damages to be done to guard against it, especially where the interests of children are concerned”. In my view this reasoning applies not only to John but also equally to Jane as an alleged victim of harassment, threats and intimidation.
[85] The defendants further highlight that most, if not all of the cases, relied upon by the plaintiffs in support of this motion involve allegations of sexual assault and/or sexual abuse and not allegations of harassment and/or intimidation and/or threats by an Ex-Partner, such as those made in the immediate case. Alternatively, the defendants contend that the cases relied upon by the plaintiffs are rooted in family law disputes with specific reference to the Children’s Law Reform Act, R.S.O., 1990, c. C.12, and Rule 1.3 of the Family Law Rules, O. Reg. 114/19, which the defendants argue have no application to this case. The defendants maintain that, for example, the following decisions relied upon by the plaintiff are readily distinguishable from the facts of the immediate case and are therefore not helpful to the court on this motion:
In A.B. (Litigation Guardian of) v. Bragg Communications Inc. 2012 SCC 46 a minor plaintiff through her litigation guardian made an application for permission to anonymously seek the identity of the creator of a Facebook profile and for a publication ban on the content of the profile in the context of claims of cyber intimidation and sexual harassment involving a 15 year old girl.
In PI v. XYZ School 2022 ONCA 571, the court restricted the scope of a publication ban in a case involving claims of serious sexual assault against minors.
In Jane Doe v. D'Amelio, 2009 CanLII 51514 (ON SC), 98 OR (3d) 387 (ON SC) the plaintiff claimed that the individual defendant, who was her teacher, sexually abused her while she was a child. She brought a motion for an order permitting her to commence an action against the defendants by way of a pseudonym.
In J.R.D. v. S.B ., 2023 ONSC 46, the mother requested an order that the names of the parties and the child be initialized in the context of a dispute over parenting time where the court was addressing the best interests of the child.
[86] The defendants maintain that the facts of this case are distinguishable from those cases, as in the immediate case, the action relates to a dispute over the form of a consent with some underlying allegations of concerns relating to threats and intimidation from an Ex-Partner with whom Jane parted ways in 2018.
[87] Counsel on this motion confirmed that they were not able to find a case with a similar fact pattern to the immediate case where the serious risk alleged flows from harassment and intimidation as described by Jane, as opposed to allegations of physical abuse or sexual assault involving a partner and/or sexual or physical abuse of a minor.
[88] The cases that the plaintiffs rely upon in support of this motion are not factually equivalent to the facts of the immediate case. However, I find that these cases are nevertheless instructive for the purpose of identifying general legal principles that are relevant to determining the issues raised in this motion. Ultimately, it is the applicability of the evidence on this motion to the test outlined in Sherman Estate which grounds the court’s decision on this motion.
Conclusion
[89] The defendants frame the “real issues” in this case as relating primarily to the form and scope of the Consent Form and the mother’s consent to the child’s presence in the class picture. However, Jane’s evidence is that her efforts to control the dissemination of her son’s private information are rooted in her desire to avoid threats and harassment from her Ex-Partner. It follows therefore that the history of Jane’s relationship with the Ex-Partner including the allegations of threats and intimidation will necessarily be relevant to the issues in dispute in the litigation.
[90] I accept the plaintiffs’ position that in order to effectively litigate this action, the plaintiffs will be required to disclose personal information, much of which is highly sensitive in nature in that it will relate to Jane’s allegations of harassment, threats, intimidation and hostility from the Ex-Partner and the associated fears for her safety and that of her son’s.
[91] With respect to the on-line article referenced by the defendants, I find that the personal information that Jane chose to disclose in the on-line article was strictly limited, not of a sensitive nature and entirely within Jane’s control. The on-line article does not identify John Doe and does not name his elementary school or any of the defendants whose identities could reveal John’s school. Moreover, in Jane’s photo which accompanies the on-line article, Jane is wearing a mask and large sunglasses which completely obscure her face.
[92] In contrast, in this litigation, Jane will not have control over the manner in which any personal information may be published or disseminated. In Sherman Estate, the Supreme Court recognized that even if “certain information is already available somewhere in the public sphere, [this] does not preclude further harm to the privacy interest by additional dissemination, particularly if the feared dissemination of highly sensitive information is broader and more easily accessible. (Sherman Estate, at para.81)
[93] In Sherman Estate the court accepted that subjection to sexual assault or harassment falls 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. (Sherman Estate, supra at paras. 71, 72, 77). I find that the court openness poses a serious threat to Jane as an alleged victim of harassment from her Ex-Partner. Jane’s evidence is that the thought that members of the public, including friends and colleagues, would be able to learn of the incidents and personal consequences that occurred related to this litigation is very distressing to her.
[94] I accept that the nature of the issues in dispute will require Jane to divulge intimate and personal details regarding the history of her relationship with the Ex-Partner that are more than discomfort or embarrassment but will strike at her “biographical core”. I find that this is sufficient to pose a serious risk to the important public interest of protecting Jane’s privacy interest and the vulnerable minor’s privacy and sensitive information.
[95] In the immediate case, Jane also fears for her physical safety and that of her child’s, if identifying information is made public. I find that these fears and the associated evidence are sufficient to pose a serious risk to the important public interest in protecting the plaintiffs from physical harm.
[96] I find that the publication, through the underlying action, of personal identifying information relating to Jane and John would expose them to a serious risk of physical harm to the extent that it permits the Ex-Partner to identify or locate them.
[97] The defendants rely on inter alia, Alexander v. Levy, 2022 ONSC 682 in support of their position relating to the insufficiency of the evidence provided by the plaintiffs relating to the risk of harm. However, the facts in Alexander are distinguishable from the facts of this case as in Alexander the court dismissed the plaintiffs’ motion for a sealing order and publication ban in the face of a record where there was a complete lack of evidence of any risk of harm.
[98] In the immediate case, the plaintiffs have provided evidence with respect to the likely effects of disclosure on their psychological, emotional and physical safety. The plaintiff was not cross-examined on her affidavit filed in support of this motion such that her evidence is uncontroverted.
[99] I find that there is sufficient evidence in the record before the court to conclude that there is a serious risk to the physical safety and privacy interests of Jane and John and that the dissemination of sensitive and intimate information relating to Jane presents a serious threat to the plaintiffs’ emotional, mental and physical well-being. I also find that the evidence supports that the order sought is necessary to prevent the serious risks identified. This evidence, as considered with respect to the test outlined in Sherman Estate, includes the following:
a) Jane has provided evidence of the potential emotional harm to her and to John should the proceedings attract public attention: Jane’s evidence is as follows:
I worry for the safety of myself and my son if the Ex-partner were to discover where I live or where John attends school. I have made a conscious effort to conceal identifying information from public forums that the Ex-partner could access (such as social media) due to concerns for my safety and my son's safety.
John and I will experience emotional, psychological and potentially physical harm if we are forced to publicly bring this claim in our own names. I have made concerted and deliberate efforts to control my private information and that of my son in order to protect us from any further harassment or harm from the Ex-partner, and in order to exercise my conscientiously-held belief that one should have the right to control one's own personal information.
Forcing John and me to publicly disclose our identities and personal information through this action would undo these efforts and render us vulnerable to further harassment, or even violence, from the Ex-partner.
b) Jane’s Ex-Partner displayed an aggressive and threatening communication style during their relationship which made her fear for her safety. The Ex-Partner is wealthy and 13 years her senior.
The Ex-Partner made a point of telling Jane that he had a cousin who could “snuff” or hurt people and that he was well-connected to people in the underworld in Toronto. Jane highlights her understanding of this sort of communication as being an intimidation tactic often used by domestic abusers.
c) On April 14th 2018 the Ex-Partner showed John, who was eight years of age at the time, a video of himself using a gun at target practice. This was very disconcerting for Jane and when Jane asked the Ex-Partner to show her the video that he showed to John, he refused.
In the record, there is an email exchange between Jane and the Ex-Partner with respect to the gun incident. The Ex-Partner suggested that the gun he used at target practice was not a real gun. However, when Jane suggested that her son thought it was a real gun and then asked to see the video to verify that the gun was not real, the Ex-Partner refused to show the video to Jane.
There is no evidence of use of the gun directed at John or Jane. However, it is unclear if the gun was real or not and there is evidence of the Ex-Partner being in possession of a firearm of some sort and of his refusal to show Jane the video to confirm that the gun shown to John was not real. There is also evidence from Jane that she feared for her safety and that of her son when the Ex-Partner, without her knowledge, showed John the video of him using a gun. (“the gun incident”)
d) Shortly after the gun incident occurred, due to her concerns about John’s safety, Jane contacted the school on April 19th 2018, to inform the school that the Ex-Partner was no longer authorized to pick John up from school.
e) Following the end of her relationship with the Ex-Partner in early 2018, Jane took active steps to avoid being alone with the Ex-Partner in their home, including during April and May 2018 where she slept on the couch to avoid sleeping in the same room with the Ex-Partner.
f) John splits his living time with his mother (Jane) and his father. On some occasions when John was not with Jane, Jane was afraid to be alone with the Ex-Partner. Between April 14th 2018 to May 2018, Jane often stayed with friends or at Airbnb’s given her fear of being alone with her Ex-Partner.
g) When Jane’s lease with her Ex-partner ended on May 31, 2018, Jane moved back to her previous apartment. Jane’s employer was aware of her situation and granted her paid days off to move, pursuant to the domestic violence leave section under the Employment Standards Act. Jane’s manager was very supportive, and the plaintiff’s leave was approved as she moved out of the condominium on May 31, 2018 and June 1, 2018.
h) Jane requested time off from work between August 21-23, 2018, to move from her old apartment into her current home, at an address not known to the Ex-Partner.
i) It is the plaintiff’s evidence that she has concealed her current address from her Ex-Partner. She has provided evidence that she fears that if he were to find out where she lives, or locates her or her child, through other means, their physical and emotional safety may be at risk.
j) Jane’s evidence is that after the dispute arose between the plaintiffs and the defendants with respect to the form and scope of the Consent Form, the defendants engaged in harsh, vindictive and retaliatory conduct including blurring John’s face from the grade 4 photo, excluding him from his group class photo, and Olympic games pictures. Jane also maintains that the defendants made denigrating comments to John about his mother which has caused the plaintiffs “prolonged and heightened” mental and emotional distress. Jane’s evidence is that the conduct of the school and the principal have caused her and John to experience severe anxiety and emotional distress.
[100] I am satisfied that the circumstances of this case meet the first prong of the Sherman Estate test.
The Extent of the Restrictions and Considerations of Proportionality
[101] Once it is accepted that a serious risk has been identified, the court must then determine whether the order requested is required to prevent the serious risk recognized because alternative, less restrictive means would be ineffective in preventing the risk. (Sherman, at para. 104)
[102] The defendants propose, and do not oppose, an anonymization order with respect to the minor only, until the age of 18. The defendants propose this option as being a less restrictive measure.
[103] In Kirby, the Court of Appeal citing the Supreme Court of Canada’s decision, Bragg, underscored the “relative insignificance of knowing a party’s identify” citing Binnie J. in F.N. (Re), 2000 SCC 35, where he referenced identity as a “sliver of information”. (Kirby, at para. 22, Bragg, at para. 28)
[104] In my view, having regard to the serious risks identified and having reviewed the terms of the proposed draft Order, I am satisfied that the proposed Order is not overly broad and that the relief sought, which includes the anonymization of both plaintiffs is proportionate to the risk of harm to the plaintiffs. I find that the serious threats identified can be addressed by the means proposed by the plaintiffs which include anonymization and the redaction of the plaintiffs’ identifying information including their names, dates of birth and images from the public version of the court documents.
[105] I find that no reasonably alternative measures are available. The proposed order, which would conceal only the identifying information of the plaintiffs is as limited as possible while preserving the individual and public interests at stake in these proceedings.
[106] With regards to considerations of proportionality, I am satisfied that the benefits of the order sought by the plaintiffs outweigh any negative effects both to the plaintiffs and to the public interest.
[107] On the public interest side, one of the benefits of an anonymization order is that it assists to lessen the trauma felt by alleged victims of harassment and intimidation/coercive conduct, and encourages them to report such conduct.
[108] Considering the plaintiffs specifically, Jane’s evidence is that forcing the plaintiffs to publicly disclose their identities and personal information would render them vulnerable to further harassment, intimidation or even violence from the Ex-Partner. Jane’s evidence is further, that it would be very emotionally distressing to her if the plaintiffs names were to be made public.
[109] The salutary effects of the proposed order include protecting the plaintiffs' personal interests and the important public interests in protecting personal physical safety, protecting personal privacy and safeguarding minor litigants.
[110] In contrast, any deleterious effects that the requested order may have on the open court principle would be minimal. The proposed order will conceal only the plaintiffs' identifying information. In my view, the information unavailable to the public will not hinder the public's understanding of the issues in question, or the decision when issued. The deleterious impacts of the proposed Order on freedom of expression and freedom of the press are not apparent particularly given the narrow scope of the Order sought.
[111] Applying the principles in Sherman Estate, the plaintiffs’ motion is granted.
[112] For the reasons provided, I order as follows:
(a) the names of the plaintiffs shall be anonymized;
(b) the title of proceedings shall be amended to replace the plaintiff’s name with "Jane Doe 00661172" and the minor plaintiff’s name with "John Doe 00661172";
(c) the parties shall use the pseudonym "Jane Doe", followed by the number of the court file ("Jane Doe 00661172"), in place of the plaintiff’s real name in any document filed with the Court;
(d) the parties shall use the pseudonym "John Doe", followed by the number of the court file ("John Doe 00661172"), in place of the minor plaintiff’s real name in any document filed with the Court;
(e) any decisions, orders or other documents made public in this proceeding shall refer to the plaintiffs as “Jane Doe 00661172” and "John Doe 00661172";
(f) all court documents shall be redacted to remove any identifying information, including but not limited to the plaintiffs' names, dates of birth, address(es), and images, from the public version of the court documents;
(g) the redacted court documents shall be publicly available and the unredacted court documents shall remain sealed.
Costs
[113] Both parties filed costs outlines. The plaintiffs’ costs outline reflects substantial indemnity costs of $85,959.21 and partial indemnity costs of $57,419.14. Despite the amounts outlined in the costs outline, the plaintiffs confirmed that if they are the successful parties on this motion, they seek costs of $20,000 inclusive of fees and disbursements. Counsel for the plaintiffs confirmed that counsel is acting on a pro bono basis.
[114] The defendants’ costs outline reflects costs on a substantial indemnity basis of $24,158.59 and costs on a partial indemnity basis in the amount of $16,180.45. The defendants confirmed that if they are successful in opposing the plaintiffs’ motion, they seek their partial indemnity costs in the amount of $16,180.45.
[115] Pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[116] Rule 57.01 provides that in exercising its discretion under s. 131, the court may consider, in addition to the result in the proceeding (and any offer to settle or contribute), the factors set out in that Rule.
[117] The overarching objective is to fix an amount that is fair, reasonable, proportionate and within the reasonable expectations of the parties in the circumstances: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[118] A successful party is entitled to its costs in the absence of a very good reason(s) not to award them: Schreiber v. Mulroney, 2007 CanLII 34441 (ON SC) at para. 2.
[119] Notwithstanding the “pro bono basis” under which this motion was argued, I am satisfied that I should exercise my discretion and award costs in favour of the plaintiffs who were the successful parties on this motion. As confirmed in Mackay Homes v. North Bay (City), the effect of such a costs order “promotes access to justice and encourages counsel in the legal community to provide pro bono service”. (Mackay Homes v. North Bay (City), 2005 CanLII 27323 (ON SC)
[120] I have considered the submissions of counsel regarding both fees and disbursements as well as the applicable legal principles. Given the complexity of the matter, the result achieved and the experience of counsel, I order partial indemnity costs in the all-inclusive sum of $15,000.00 payable by the defendants to the plaintiffs within 30 days, which amount I find to be fair and reasonable and within the expectations of the parties.
___________________________
ASSOCIATE JUSTICE ECKLER
Date Released: June 12th, 2026
*Amended June 25th, 2026, to remove identifying information in paragraphs 31 and 49 and to correct two typographical errors (paragraph 112(b) (English version only) and Mr. Rocque’s name).