Generally, the answer is “yes.” Unlike the criminal system, where publication bans intended to protect the identity and privacy of a victim are the norm, our civil system is very different. When victims become plaintiffs, the assumption is that their identity will be disclosed and, therefore, public.
This default position is set out in Rule 14.06(1) of the Ontario Rules of Civil Procedure. This rule requires the title of proceedings in any action set out the names of all parties. It is connected to a number of principles key to the successful functioning of our judicial system, of which the most significant is perhaps open courts.
The open court principle is key to the independence and impartiality of our courts, and underscores the widely held public view that transparent processes are to be trusted over secret or closed ones. Judges have repeatedly held that the presumption in favour of open-court proceedings fosters public confidence in the integrity of the judicial system and in the administration of justice.
To this end, the Supreme Court of Canada has repeatedly confirmed the openness of Canadian court proceedings is a fundamental aspect of our democracy: A.G. (Nova Scotia) v. MacIntyre, Dagenais v. Canadian Broadcasting Corp., Sierra Club of Canada v. Canada (Minister of Finance), and Toronto Star Newspapers Ltd. v. Ontario.
Given the importance of the presumption in favour of openness, under what circumstances may plaintiffs make use of a pseudonym?
Traditionally, the courts have used a three-part test, similar to the test for an injunction. A person seeking to use a pseudonym must first establish there is a serious issue to be tried; second, that absent a pseudonym he or she is likely to suffer irreparable harm; and third, that the balance of convenience favours the use of a pseudonym.
This test is not specific to cases in which survivors of sexual violence are seeking to preserve their privacy but has been used in cases alleging medical negligence and where confidentiality is the right at issue in an action: see S.T. v. Stubbs, A.B. v. Stubbs, and A.(J.) v. Canada Life Assurance Co.
There is a low threshold to establish the presence of a serious issue to be tried: Doe v. O’Connor. Allegations of sexual assault will generally meet this threshold.
The second step in the test requires that a party wishing to use a pseudonym adduce independent evidence on the likelihood of irreparable harm. Many years ago, justice Brian Dickson remarked in MacIntyre: “As a general rule, the sensibilities of the individuals involved are no basis for the exclusion of the public from judicial proceedings.”
This remains the case today. The fact a plaintiff may suffer embarrassment if required to proceed in his or her own name does not amount to irreparable harm.
In the context of a pseudonym sought to protect the identity of a plaintiff in a civil sexual assault case, the court held “there is no automatic right” to use one in such cases. The plaintiff’s own assessment of his or her own vulnerability is not sufficient, even where this evidence is presented in affidavit form: Jane Doe v. D’Amelio.
To succeed on the second step, a party wishing to use a pseudonym must adduce compelling medical or psychological evidence, normally from a treating professional, with respect to the harm the particular plaintiff may suffer if required to proceed with an action in his or her own name.
At the third step, a plaintiff must also demonstrate that the balance of convenience weighs in favour of protecting his or her identity. This requires a determination not only of the interests of the plaintiff and any defendants but also the interests of the public.
With respect to plaintiffs, there is an individual privacy interest at stake. Additionally, anonymity protects the plaintiff from embarrassment or stigma and the potential for psychological harm. Some plaintiffs are so uncomfortable with the requirement of using their own names, they will not continue with a proceeding if they cannot do so anonymously.
For defendants, on the other hand, the balance of convenience normally favours disclosure of the plaintiff’s identity. Many defendants consider the use of a pseudonym prejudicial, and argue it will hinder his or her ability to mount a robust defence. The use of a pseudonym by a plaintiff takes away the opportunity for public scrutiny, and diminishes the possibility that a third party may come forward with knowledge of the case.
As for the general public, the balance of convenience depends on the facts of the particular case.
In civil sexual assault cases, public interest weighs in favour of anonymity, as protecting the identity of sexual assault victims contributes to the likelihood that the assault will be reported and has been shown to increase victims’ co-operation with authorities.
Anonymity also protects against the exacerbation of trauma experienced by victims, which may occur as a result of publicity relating to the case. However, this must be balanced against the fundamental presumption in favour of the open court principle.
In general, where compelling evidence of irreparable damage has been adduced, the courts will find that the balance of convenience weighs in favour of anonymity, according to D’Amelio.
A significant exception to the test outlined above has been established in cases where a minor seeks anonymity in the context of a case relating to sexualized cyber bullying. Under those circumstances, the Supreme Court of Canada has held that the harms caused by sexualized cyber bullying are objectively discernable, and evidence of irreparable harm to the individual child is not required: A.B. v. Bragg Communications.
Despite the exception in Bragg, most civil sexual assault cases proceed without the use of pseudonyms. The open court principle remains fundamental to our system of justice and contributes to ensuring that justice is not only done but is seen to be done.
Nevertheless, for the subset of individuals who can demonstrate they will incur irreparable harm if required to proceed with a case in their own names, pseudonyms remain a viable and achievable option for permitting justice in those cases.
Guest columnist Anna Matas is an associate at Lerners LLP in Toronto.