Requests for anonymity in the context of litigation

Quebec tribunals led to further define exceptions to the public nature of court proceedings 

In 2021, the Supreme Court of Canada opened its Sherman Estate v. Donovan^[1] judgment by reiterating the rationale for and importance of the open court principle:

This Court has been resolute in recognizing that the open court principle is protected by the constitutionally entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.^[2]

Despite this statement of the open court principle’s importance, the Supreme Court underlined that restrictions to it can be justified in exceptional circumstances, in the presence of competing public interests.

In recent months, Quebec Courts have had to further define and refine the boundaries of these possible restrictions, notably in cases in which one of the parties sought to be granted anonymity for the purposes of judicial proceedings.

Such requests for anonymity have been made frequently in the context of the #metoo movement, which has been the backdrop to civil proceedings undertaken by victims of alleged sexual assaults, as well as proceedings in defamation undertaken by alleged aggressors who have been publicly denounced.

In order to ascertain the threshold that has to be met to justify an exception to the open court principle, Quebec Courts have turned to the notion of “good administration of justice”, stating that exceptions have to made when the protection of social values must prevail over transparency of judicial proceedings and when such exceptions are necessary to preserve a person’s capacity to turn to tribunals to exercise their rights, including their fundamental rights. ^[3]

In discussing where the balance lies in this evaluation of competing interests, Courts have long held that the sole possibility of harm to one’s reputation, of shame, or of embarrassment is insufficient to justify an application for confidentiality measures, since all judicial proceedings carry an implicit risk of having to reveal information of a personal nature.^[4] A party requesting an order curbing the open court principle has to demonstrate an interest that goes beyond the desire to avoid the potential embarrassments that naturally result from taking private matters into open courts.

In Sherman, the Supreme Court of Canada reviewed the test for the issuance of confidentiality orders that had been set out in prior cases, and concluded that that a person asking the Court to exercise discretion in a way that limits the open court presumption must establish three prerequisites:

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.

In Sherman, the potential public interest under scrutiny was the public interest in privacy. While the Supreme Court stopped short of recognizing a broad public interest in privacy, it ruled that a narrower aspect of privacy centered strictly on the protection of individual dignity constitutes an important public interest that can justify limits to the open court principle, in cases where the three prerequisites described above are met.

Since the Sherman decision was rendered, Quebec Courts resorted to the above-mentioned test to rule on various of applications for authorization to proceed anonymously in litigation proceedings, based on the public interest in the protection of dignity evoked in Sherman. Quebec Courts thus granted anonymity orders to defendants in a defamation case where the plaintiff had been publicly accused of sexually assaulting the defendant ^[5] and where victims of sextortion were seeking civil redress. ^[6] Quebec Courts have refused to issue such orders when requested by parties who had been publicly accused of sexual misconduct or sexual assault. ^[7]

At first, glance, these cases, as well as the case law predating Sherman, seem to point towards a general trend, namely that Courts will tend to grant anonymity to alleged victims of sexual improprieties or assault, harassment or extorsion, and refuse to grant anonymity to plaintiffs in defamation cases that result from said plaintiffs having been publicly accused of one of these acts.

Drawing such a conclusion would, however, obfuscate the fact that the criteria set out in Sherman are intended to provide sufficient flexibility to allow Courts to consider the entire context of a case, and that the particular facts of the case could lead the Court to break with the apparent trend discussed above.

While Courts might be more amenable to conclude that there is a serious risk to an important public interest in cases where the party seeking anonymity is an alleged victim of criminal behavior, the Court of Appeal recently underlined that being a victim of sexual assault does not, in and out of itself, provide a party with an automatic right to anonymity. ^[8]

In that case, the party seeking an order of anonymity was sued in defamation in her capacity as founder and administrator of the Dis son nom website, which published a list of individuals alleged to have committed sexual improprieties or sexual assault.

In her defense, the party seeking anonymity alleged her own status as a victim of sexual assault and the facts surrounding the assaults she suffered, with the objective of explaining her motives for founding the Dis son nom website and the role it was meant to play in contributing to victims’ healing process.

In rejecting the anonymity order sought, the Court of Appeal underlined that the party seeking anonymity had chosen to allege details of the sexual assaults she suffered even though they did not seem immediately relevant to the defamation proceedings, and that allowing anonymity on such a basis would allow a party to tailor its litigation strategy to create, ex post facto, a right to anonymity. ^[9]

While anonymity orders sought by alleged victims of sexual assault, harassment or extorsion might be granted more frequently, we must refrain from concluding that simply alleging such a status will result in the order being granted. As a corollary, the evidentiary burden to demonstrate an actual serious risk to an important public interest, on the particular facts of the case, continues to weigh on the applicant.

A better way to explain the trend described above would instead be that anonymity is often granted to victims of sexual assault, harassment or extorsion, because the very nature of the proceedings they undertake often entails a serious risk to their dignity. Such proceedings generally require that plaintiffs reveal elements of their “biographical core” that touches upon the narrower concept of dignity, embedded in the broader right to one’s privacy. In such a context, the exercise of the alleged victim’s legal rights truly requires that a part of his or her biographical core be revealed and refusing to grant the right to proceed anonymously would likely jeopardize that party’s capacity to exercise said rights.

Based on the above, parties seeking an anonymity order will benefit from showing that the alleged serious risk to an important public interest necessarily results from the nature of the proceedings undertaken, as opposed to being a result of strategic choices made for the purposes of litigation. This raises a question that will likely have to be addressed by the Court, namely at what point does the inability to adopt a particular litigation strategy constitute an impediment to exercise one’s legal rights that affects the “good administration of justice”.

Courts have also attempted to clarify the evidentiary threshold that has to be met to meet the first criterion set out in Sherman, namely to show that there is a serious risk to an important public interest.

In that regard, the Quebec Court of Appeal noted that, while the evidence adduced to support the existence of a serious risk to an important public interest needs to be sufficient and be particularized to the case at hand, it does not need to meet the thresholds set for evidence on the merits, as evidence of a serious risk adduced on a preliminary basis will necessarily be more general and incomplete than the evidence at trial. ^[10] As stated above, particularized evidence is less likely to be required when the very nature of the case necessarily entails a serious risk to the important public interest.