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Open Court - Anonymization. A.Z. v. Office of the Independent Police Review Director
In A.Z. v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court faced a JR of an OIPRD decision that dismissed her complaint against police officers. Within the JR the applicant sought 'open court' interlocutory orders that her name and identity be withheld, to which the OIPRD consented. In this quote the court extensively sets out the three-part Sherman Estate ('open court') doctrine, and their reasoning in the motion:The Applicable Principles
[1] The open court principle is a “hallmark of a democratic society” which “has long been recognized as a cornerstone of the common law”: Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, at paras. 23-24. See also: A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11. The presumption that courts are open is fundamental to our justice system and is protected under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.
[2] The freedom of the press to report on judicial proceedings and the right of the public to receive information have also been found to be protected by the constitutional guarantee to freedom of expression: Re Vancouver Sun, 2003 SCC 43, [2004] 2 S.C.R. 332, at para. 26.
[8] The test applied when courts are asked to exercise their discretion to order that public access to a file or proceeding be restricted was recently reaffirmed by the Supreme Court of Canada in Sherman Estate v Donovan, 2021 SCC 25, at para. 38. In Sherman Estate, the Court recast the Dagenais/Mentuck test as follows:(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 order outweigh its negative effects. [9] All three requirements must be met for a limit on court openness to be ordered.
[10] In this case, the Applicant has provided affidavit evidence detailing her concerns about her identity being made public in this proceeding. At the time of the incident, the Applicant was working as an exotic dancer. The Applicant used a stage name and has generally concealed the fact that she previously worked as an exotic dancer because of the stigma associated with such work. The Applicant wishes to have a career as an accountant and was pursuing post-secondary education at the time of the incident. She was also employed in the financial industry. After the incident, the Applicant received medical treatment for PTSD, as indicated in a psychiatrist’s report, and had to discontinue her studies and work. However, she continues to wish to pursue a career as an accountant and fears that the disclosure of her identity would negatively impact her prospects. The Applicant also expresses a fear of reprisal from her former employer from whom she experienced harassment, abuse and exploitation “even before the incident.” The Applicant states that she relocated to a different province because of this fear.
[11] The Applicant further deposes that publishing her identity in connection with this proceeding would cause her greater distress and negatively impact her mental health and that she would not likely proceed with this matter if she were not granted the ability to proceed anonymously.
Application
Court Openness Poses a Serious Risk to an Important Public Interest
[12] In H.(M.E.) v. Williams, 2012 ONCA 35, at para. 27, the Court of Appeal held that “an individual’s right to seek and obtain appropriate relief in a court proceeding is a matter of significant public interest impacting on the proper administration of justice.” The Court of Appeal went on to find that the party does not have to establish that they would not go to court absent the privacy protections requested: “[a]ccess to the courts should not come at the cost of a substantial risk of serious debilitating emotional or physical harm to the party seeking access.”: Ibid, at para. 29.
[13] In this case, without assessing the merits of the Applicant’s application for judicial review, there is a public interest in the Applicant’s ability to pursue the application, which engages issues of the conduct of a police investigation into sexual assault allegations, which are of a highly personal and intimate nature, without the fear of reprisal, psychological harm or negative employment consequences.
[14] In addition to the public interest in access to the courts, in my view, the privacy interest raised by the Applicant satisfies the public interest element. In Sherman Estate, at paras. 47-48, the Supreme Court held that “[p]ersonal concerns that relate to aspects of the privacy of an individual who is before the courts can coincide with a public interest in confidentiality.” The Supreme Court recognized that while an individual’s privacy is pre‑eminently important to that individual, “this Court has also long recognized that the protection of privacy is, in a variety of settings, in the interest of society as a whole.”
[15] In Sherman Estate, at para. 71, the Supreme Court further stated that “[v]iolations of privacy that cause a loss of control over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspects of oneself to others in a selective manner[.]” The Supreme Court held that “[p]rotecting 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”: Sherman Estate, at para. 73.
[16] In Sherman Estate, the Supreme Court, at para. 77, recognized both subjection to sexual assault or harassment and the sensitivity of “stigmatized work” as personal information that, if exposed, could give risk to a serious risk. In Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100, at paras. 28-29, Favreau J. (as she then was) found that given the stigma associated with stripping, public knowledge of a stripper’s identity makes them vulnerable to losing their employment in jobs other than stripping or in finding other work in the future. In so finding, Favreau J. stated that the evidence “accords with common sense given the stigma associated with working as a stripper and the easy access to information on the internet.”[2]
[17] Moreover, while the Applicant’s case does not concern a statutory publication ban, in Canadian Newspapers Co. v. Canada (Attorney General) 1988 CanLII 52 (SCC), [1988] 2 S.C.R. 122, at para. 15, the Supreme Court recognized that statutory publication bans in sexual assault cases serve the important goal of fostering “complaints by victims of sexual assault by protecting them from the trauma of wide-spread publication resulting in embarrassment and humiliation.”
[18] In this case, the Applicant’s privacy concerns raise an issue of public interest because they relate to her allegations of sexual assault while employed as an exotic dancer. These are core aspects of the Applicant’s private life that engage the Applicant’s dignity.
[19] Moreover, privacy as a public interest concern can be tied to the risk of psychological harm: Sherman Estate, at para. 54. The Applicant has provided evidence of the ongoing psychological impact of the incident on her and the potential that public disclosure of her work as an exotic dancer at the time could result in further emotional and mental distress.
[20] Accordingly, based on both the Applicant’s access to the court and the sensitivity of the personal information at issue, I am satisfied that court openness poses a serious risk to an important public interest.
The Order Sought is Necessary to Prevent This Serious Risk
[21] At the second stage, the court must consider whether reasonable alternative measures are available and restrict the order as far as possible without sacrificing the prevention of the risk: Sherman Estate, at para. 105.
[22] In Work Safe Twerk Safe, at para. 30, this court held that there was no reasonable alternative to an anonymization order because without such an order, the evidence available in the proceeding would be limited to evidence from strippers who were willing to identify themselves. In this case as well, anonymization is necessary to enable the Applicant, who is the only complainant, to come forward.
[23] Similarly, there is no reasonable alternative to an order restricting publication of the Applicant’s identity or identifying information.
[24] The Applicant also seeks an order “for the confidentiality and sealing of documents in this court file that contain the name and identifying information of the Applicant (namely, the Order, consent for the order, the draft Order and Notice of Motion)”. In my view, such an order would not be consistent with minimal impairment of the open court principle in that it would be overly broad and preclude access to the basis for the granting of this motion. As a result, the terms below will require that the motion material be re-filed with the court, anonymized and with any identifying information redacted.
The Benefits Outweigh the Negative Effects
[25] In my view, the benefits of an order protecting the Applicant’s identity outweigh the negative effects. In Canadian Newspapers Co., the Supreme Court held that the harm caused by a publication ban protecting the identity of an individual was minimal because media are still able to be present at a hearing and to report all other facts in the case. The same applies here. An order protecting the Applicant from disclosure of her identity would avoid the risks raised by the Applicant and would have minimal negative effects. The media would be able to be present at the hearing and report all other facts in the case. The Applicant’s identity and identifying information is a “sliver of information” of relative insignificance: A.B. v. Bragg Communications, at para. 28. . AA v. BB
In AA v. BB (Ont CA, 2021) the Court of Appeal upheld a trial judge's efforts to protect the identity of children involved in a tort action:[49] The trial judge invoked s. 87(8) of the CYFSA to order that the letters AA, BB, and CC be used instead of the parties’ initials in all judgments and endorsements related to the matter.
[50] Section 87 of the CYFSA applies to hearings held under Part V of the Act dealing with child protection. Section 87(8) states that “[n]o person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.”
[51] AA submits that his civil action against BB and CC was not a hearing or proceeding under Part V of the CFYSA, so the trial judge erred by relying on s. 87(8) to grant the Naming Order.
[52] Whether or not the trial judge possessed jurisdiction under CFYSA s. 87(8) to issue the Naming Order, he certainly possessed the jurisdiction through a combination of his inherent jurisdiction and s. 137(2) of the CJA[3]: see Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332. Although the trial judge did not refer to the principles set out in Sierra Club, at para. 53, and Vancouver Sun, at paras. 30-31, his Naming Reasons disclose that, in essence, he considered: (a) whether some restriction on the naming of the parties was necessary to prevent a serious risk to the welfare of AA and CC’s children; and (b) whether the salutary effects of such a restriction would outweigh its deleterious effects. That analysis has been applied by Ontario courts to initialize or otherwise protect the identities of parties and their children in civil matrimonial litigation: L.C.F. v. G.F., 2016 ONSC 6732, 86 R.F.L. (7th) 338, at paras. 17-18; S.M. v. C.T., 2020 ONSC 4819, 46 R.F.L. (8th) 109, at paras. 27-28; G.S. and K.S. v. Metroland Media Group et al., 2020 ONSC 5227, 46 R.F.L. (8th) 357, at paras. 43-44. . Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario
In Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario (Div Ct, 2021) the Divisional Court considered a motion by a party to anonymize affidavits:[13] Given that Work Safe seeks to restrict public access to the identity of strippers who will be swearing affidavits on the application, the test to be applied is the test articulated by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76. The Dagenais/Mentuck test requires Work Safe, as the party seeking the order, to establish that:a. Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
b. The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the respondent to a fair and public hearing, and the efficacy of the administration of justice. ....
Issue 1: Is the order necessary to prevent a serious risk to the administration of justice?
[16] In H. (M.E.) v. Williams, 2012 ONCA 35, the Court of Appeal set out some of the principles that apply to deciding whether the necessity branch of the Dagenais/Mentuck test is met. At para. 33, the Court held that, in considering the necessity branch of the test, the court is to keep the “high constitutional stakes” of freedom or the press “at the forefront of the analysis”:The constitutional right to freedom of expression protects the media's access to and ability to report on court proceedings. The exercise of this fundamental freedom in the context of media coverage of court proceedings is essential to the promotion of the open court principle, a central feature of not only Canadian justice, but Canadian democracy. [17] The necessity branch of the test only focuses on the existence of a serious risk to the public interest. At this stage, the potential benefits of the order are irrelevant: Williams, at para. 31.
[18] In Elbakhiet v. Palmer, 2019 ONCA 333, at para. 27, the Court of Appeal set out the three issues the court is to consider in determining whether the necessity branch of the test has been met:To meet the necessity part of the test, the requesting party must show: an important interest that can be expressed as a public interest; a real and substantial risk that is well-grounded in the evidence and that poses a serious threat to the interest in question; and no other reasonable alternative to the order sought. Public interest at stake
[19] I accept that there is a public interest at stake here.
[20] In Williams, at para. 27, the Court held that “an individual's right to seek and obtain appropriate relief in a court proceeding is a matter of significant public interest impacting on the proper administration of justice”. In that case, the Court held that the public interest was engaged in divorce proceedings because the case involved access to the court on matters “integral to personal autonomy”. In this case, without assessing the strength of Work Safe’s Charter challenge, what is at stake is access to the court on matters involving the livelihood and safety of strippers. Employment and the ability to work safely are matters integral to personal autonomy. Accordingly, I accept that Work Safe’s ability to bring this application forward on behalf of the strippers engages matters of public interest.
Real and substantial risk
[21] Even if there is a public interest, at stake, Work Safe must establish that there is a real and substantial risk that it cannot access the courts on behalf of the strippers absent an anonymization order. In Williams, at para. 28, the Court held that a party seeking an order of this nature does not have to establish that it would not go to court absent the order because access to the courts “at the cost of substantial debilitating emotional or physical harm … would be more illusory than real”. However, at para. 30, the Court emphasized that personal emotional distress and embarrassment are not sufficient; there must be a risk of serious physical or emotional harm.
[22] In Williams, at para. 34, the Court of Appeal also emphasized the heavy evidentiary burden faced by the party seeking an order restricting public access to the courts:[T]he centrality of freedom of expression and the open court principle to both Canadian democracy and individual freedoms in Canada demands that a party seeking to limit freedom of expression and the openness of the courts carry a significant legal and evidentiary burden. Evidence said to justify non-publication and sealing orders must be “convincing” and “subject to close scrutiny and meet rigorous standards”. [23] In A.B. v. Bragg Communications Inc., 2012 SCC 46, at paras. 16, the Supreme Court held that, even in the absence of direct evidence of harm, the court can find that there is a risk of harm “by applying reason and logic”.
[24] In this case, Ontario argues that Work Safe has not met its evidentiary burden of providing “convincing” evidence of a serious risk of harm. In particular, it argues that Work Safe has not provided direct evidence of the risks strippers would face if they use their names or evidence that Work Safe cannot advance the application by finding strippers willing to identify themselves in affidavits sworn in support of the application. In support of this position, Ontario relies on the Adult Entertainment Association decision referred to above.
[25] In Adult Entertainment Association, the applicants challenged a by-law that regulated “adult entertainment parlours” in the City of Ottawa. In support of the application, the applicants sought to include forty-five anonymized affidavits sworn by “female adult entertainment performers”. In support of the motion, the applicants put forward an affidavit sworn by one of the performers who referred to the potential stigma to the performers and their children if they had to identify themselves publicly. The Court dismissed the motion. The Court found that there was no evidence that none of the forty-five affiants would be willing to swear affidavits using their full names. The court also noted that many of the affiants did not appear to have families or connections to the Ottawa region.
[26] In my view, the Adult Entertainment Association case is distinguishable. The decision was based on the specific circumstances and evidence before the Court in that case. In addition, it was decided in 2005. At that time, the proposed affiants’ ties to Ottawa may have seemed relevant. However, in 2021, as argued by Work Safe, the internet greatly diminishes the relevance of geography in determining the risks of public identification. Once the strippers’ names are made public, as a matter of common sense and logic, that information is available to the world. . A.A. v. Z.M.
In A.A. v. Z.M. (Ont CA, 2024) the Ontario Court of Appeal dismissed family law motions, here for a stay of a prior order that "ordered the return of the child of the marriage" and another seeking "a limited publication ban". The parties resided in Bangladesh and one had filed a refugee claim.
Here the court grants 'initializing' and 'publication ban' motions, here in the interests of children:B. Initializing the proceeding
[25] The mother seeks an order that the parties be allowed to use their initials in this proceeding. The father opposes the order, but not strongly.
[26] The open courts principle directs that all court proceedings be open and available to the public. There is however a recognized exception to that requirement and that is where the interests of children are involved.
[27] Given that the child is central to the issues raised in this proceeding, I do not see any reason not to apply that exception. The open courts principle is not seriously harmed by the use of initials in a case such as this.
[28] I therefore grant an order permitting the parties to use their initials. The mother sought a companion publication ban only with respect to any material in this court record that would identify the parties. In order to support the purpose of allowing initials to be used by the parties, such a very limited publication ban is necessary. I therefore grant an order banning the publication of any information contained in the court record that might tend to identify the parties or the child. . Law Society of Ontario v. A.A.
In Law Society of Ontario v. A.A. (Div Court, 2024) the Divisional Court was considering an LSO JR challenging a decision by the Law Society Appeal Division that the respondent was of 'good character' for lawyer licensing purposes. Within that JR application the respondent license applicant brought a successful motion to renew an earlier Law Society Tribunal anonymization order:C. Should an anonymization order be made?
[17] Public access to court proceedings and court records is a hallmark of our democracy. Openness of the court protects the integrity of the process. It is crucial to maintaining public confidence in our legal system. The openness of our courts is also inextricably linked to freedom of expression, which is protected by s. 2(b) of the Charter: Vancouver Sun (Re), 2004 SCC 43 at paras. 23 to 25, Canadian Broadcasting Corp v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 SCR 480 at paras. 17 to 22.
[18] An anonymization order is an exception to the open court principle. The burden is, therefore, on AA to establish the following:a. Complying with the open court principle and publishing his name would pose a serious risk to an important public interest;
b. The order sought is necessary to prevent the identified risk and no alternative measure is available; and
c. As a matter of proportionality, the benefits of the order outweigh its negative effects. [19] It is only if all three criteria are met that I can exercise my discretion to limit the application of the open court principle and anonymize AA’s name: Sherman Estate v. Donovan, 2021 SCC 25 at para. 38.
a. Serious Risk to an Important Public Interest
....
[25] I recognize that litigation often involves public disclosure of information that the parties would prefer to remain private. A risk that a litigant’s privacy will be infringed through the public disclosure of information will not be sufficient to justify an order limiting public access to the Court and to court records: Sherman Estate, at paras. 56 to 59. The issue here, however, is not merely a risk to AA’s privacy or a preference on AA’s part to keep information about his misconduct private. The issue is the health and safety of AA’s children, who were not parties to the proceedings before the Law Society Tribunal or Appeal Division and are not parties to the proceedings in this court.
[26] AA’s children are entitled to protection from the serious psychological harm that could arise from public disclosure of the sexual abuse.
[27] The Law Society does not oppose an anonymization order being made in relation to the identity of AA’s former spouse and children to protect their privacy. However, an order that protects the children’s identities will not protect them from finding out about their father’s abuse. In fact, the Law Society concedes that disclosing AA’s name will likely result in their children finding out what happened.
[28] The Law Society also argues AA has had long enough to find an opportunity and an appropriately supportive environment in which to disclose the abuse to his children. The Law Society argues AA is delaying disclosing his abuse to the children to protect his own identity. I would, of course, be concerned if I thought AA was delaying telling the children to protect his own privacy interest. The evidence, however, does not support such a finding. AA and his former spouse were cross-examined on the affidavits they filed in support of this motion. AA testified he would prefer to tell the children about his sexual misconduct now. His former spouse, however, is very strongly of the view that the children should never be told. It seems that AA has not told his children about what happened at least in part out of respect for his former spouse’s opinion.
[29] It may not be possible for AA to keep his identity concealed forever, particularly if he is successful on this judicial review application and he is granted a license with the condition imposed by the Law Society Tribunal. At a minimum, that condition will be on his license and members of the public (and the media) will likely be able to figure out that he is the person previously identified as AA.
[30] But for now, I am satisfied that there will be a risk of serious harm to an important public interest – the wellbeing of AA’s children – if his name is not anonymized in the court record.
b. Is an anonymization order necessary to protect the important public interest?
[31] AA is seeking a permanent anonymization order that would prohibit the Law Society from ever disclosing his name to anyone.
[32] The Law Society argues that even if there is a serious threat to an important public interest, a permanent anonymization order is not necessary. The Law Society argues that a time-limited order will adequately protect the important interests at stake. I agree.
[33] A temporary anonymization order will protect the children until the hearing of this judicial review application. A temporary order will also give AA and his former spouse time to disclose to their children what happened according to each child’s needs before they might be subject to public scrutiny. Finally, a temporary order will allow the panel hearing this application decide whether a further order is appropriate.
c. Do the benefits of a temporary order outweigh the negative impact on the open court principle?
[34] Balancing the benefits of an anonymization order against its impact on the open court principle requires me to consider the nature and extent of the order contemplated.
[35] AA argues that an anonymization order will minimally impair the open court principle because it will prohibit the public disclosure of only a “sliver” of information – his name. AA argues all the other details of his misconduct and the proceedings before the Law Society are available to the media and the public. The Law Society disputes this characterization of the order. The Law Society argues that preventing the disclosure of AA’s name will profoundly undermine its ability to regulate in the public interest because members of the public will not know that the lawyer whom they are thinking of retaining is AA.
[36] Whether AA’s characterization or the Law Society’s characterization of the order is right largely depends on the outcome of the judicial review application. For now, the anonymization order will have little impact on the open court principle. All the details of this case other than AA’s name is available to the public. All the decisions have been published. The public can scrutinize the process and the rulings. For now, the only thing the public does not know is AA’s identity. And I issued a stay of the Appeal Division’s decision so AA will not be licensed to practice law unless he is successful on the judicial review application.
[37] The impact of an anonymization order will be quite different, however, if AA is successful and is entitled to be licensed. The Law Society has an obligation to regulate in the public interest: Law Society Act, R.S.O. 1990, c. L.8, s. 4.2. Part of the public interest necessarily involves notifying the public of misconduct by lawyer (and paralegal) licensees so the public can make an informed decision whether to hire a particular lawyer. The Law Society maintains a public directory of lawyer and paralegal licensees. The directory says whether the licensee has a “regulatory history” and provides details of that history. The directory is one way the Law Society can give notice to the public that a licensee has engaged in misconduct in the past.
[38] Disclosing AA’s identity will take on much greater significance if he is successful on the judicial review application and the Appeal Division’s finding that he is of good character is upheld. Subject to any further appeal, AA would then be entitled to be licensed. The Law Society would then have a very strong interest, consistent with its statutory mandate, in having the anonymization order lifted so the public could make an informed decision about whether to retain AA with the full knowledge of what he has done. If, however, the Law Society is successful in its judicial review application and AA does not meet the criteria for a license, the public interest in AA’s identity may be significantly reduced.
[39] The impact of a permanent anonymization on the public interest cannot be known until the Law Society’s judicial review application is decided, which is why I am not prepared to make a permanent order now. Nevertheless, on balance, I am satisfied that the benefits of a temporary order pending the hearing of this application outweighs the negative impact on the open court principle. . SBJ v. Ali
In SBJ v. Ali (Div Court, 2023) the Divisional Court considered an appeal under s.80(1) of the Health Care Consent Act, 1996 from a decision of the Consent and Capacity Board, which found the appellant "not capable of consenting to treatment in the form of mood stabilizing and antipsychotic medication".
In this quote the court grants the 'anonymization' of the appellant's name - here under CJA 135, 137 and the common law 'open court' doctrine:Preliminary Issue: Anonymization
[3] Ms. Perez sought an order that the case be reported by using initials in the title of proceedings and in any reporting of the case. This Court has jurisdiction to use pseudonym initials to protect the identity of parties in civil proceedings:. Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 135, 137; Rules of Civil Procedure, R.S.O. 1990, Reg. 194, Rules 2.03 and 14.06. Counsel for Dr. Ali, Mr. McIntyre, agreed that such an order should be made.
[4] I find that on balance, the order sought protects the Appellant’s privacy concerning intimate personal health information without unduly restricting the open court principles as recently affirmed by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 at para 30. These proceedings and findings are public. Only the name will be protected from publication by use of anonymization.
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