If a rose by any other name still smells as sweet, should it matter to the courts if a plaintiff uses a pseudonym in proceedings?
In this blog post, I explain why and how pseudonyms are used in sexual abuse and sexual assault cases. I also discuss why some survivors make requests for pseudonyms while others are indifferent or even motivated to use their own names.
Pseudonyms in an Open Justice System.
Ontario’s civil courts generally strive to provide an open justice system which limits the potentially detrimental effects of secrecy. There is a presumption that openness is preferable to adopting pseudonyms for participants or allowing complete publication bans.
For example, the absence of names in proceedings can increase the risk of judicial injustice (bias, faults or omissions by the court). Moreover, if the public is unaware of a plaintiff’s allegations and/or a defendant’s response, it may limit the court’s ability to discover the truth (potential witnesses or other evidence that could significantly impact proceedings may not come to light).
Rule 14.06 of Ontario’s Rules for Civil Procedure requires parties to a civil action be named. Of course, rules often have exceptions; Rule 2.03 permits the court to, “only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.”
Some reasons a court may dispense with Rule 14 naming requirements include:
- If a party can establish they would likely suffer irreparable harm from being named.
- To protect a plaintiff’s right to confidentiality that the action itself seeks to protect
- To protect anonymous speech when the potential for reprisal outweighs the benefits of openness
Courts have increasingly recognized the importance of privacy when dispensing with naming compliance, but this interest and related concerns about embarrassment are insufficient grounds for pseudonyms on their own.
How Would a Court Determine if a Pseudonym Is Appropriate in a Sexual Assault Case?
If a survivor wants to use a pseudonym as a plaintiff in civil proceedings, they would normally seek an exemption from Rule 14 on the grounds of suffering irreparable harm through a motion. Although this usually happens prior to filing the statement of claim, a retroactive motion can be made if a plaintiff becomes concerned about the possibility of publicity during proceedings.
Courts have used a three-part test to determine if such an exemption is justified.
First, the plaintiff must establish the matter before the courts is serious. There is a low bar for this part of the test, and a sexual abuse or sexual assault case would almost certainly be considered a serious matter.
Second, the plaintiff must submit evidence from an independent third party that offers compelling support for the position that the plaintiff would likely suffer irreparable harm if named. For example, in the case of sexual assault survivors, the opinion of a treating physician or therapist may be sought to explain the potential damage to the survivor’s recovery or general mental health and well-being.
Lastly, the plaintiff must satisfy the court that, on the balance of conveniences, protecting their identity would be more favourable to the parties involved in the action and the public interest than openness.
In sexual abuse and sexual assault cases, the plaintiff would have an interest in protecting their privacy. A defendant may object to the pseudonym, as it could limit public scrutiny and/or the possibility that unknown/unidentified witnesses could learn of the action and offer evidence favourable to the defence. Although there is usually a public interest in openness in civil proceedings, permitting sexual assault victims to have anonymity has been shown to increase the likelihood that such assaults will come to light and that victims will be more willing to co-operate with authorities.
Therefore, on balance, if a plaintiff has demonstrated they are likely to suffer irreparable harm by being named, the plaintiff’s interest in privacy and the public interest in ensuring harmful acts are reported to authorities tend to outweigh defence objections.
Why Would a Survivor Want to Remain Anonymous?
Pseudonyms and publication bans are automatic in criminal court cases.
Author and activist Jane Doe, who successfully sued the Toronto police for negligence and gender discrimination in connection with their investigation of her rape and sexual assaults generally, has persuasively explained why such publication bans are important in criminal courts. Although lawsuits differ substantially from criminal proceedings, many of the same reasons hold true for survivors seeking civil remedies.
Survivors may have particular concerns about attaching their name to publicly available court documents, including:
- A general desire for privacy and to avoid publicity which may re-traumatize them
- Not wanting certain family members to know about the assault or abuse
- Having school age children who could be adversely affected
If a civil court declines to grant protection to survivors who petition for it, some of them will ultimately decide not to proceed with their lawsuit. However, it’s important to know that it has become exceedingly rare for courts not to grant survivors a pseudonym request.
Moreover, in my experience, some clients who are initially quite concerned about anonymity decide that it should not be the determining factor about whether or not they proceed. In fact, some clients who were granted a pseudonym or publication ban prior to their civil action have requested to have these bans lifted so they can speak openly about what happened to them - something our criminal court system is grappling with.
Your Well-Being Matters to Us.
If you or a loved one has experienced a sexual assault or sexual abuse and you want to know about your options, please contact our team for a free, no obligation initial consultation. We will listen to your story with great empathy, carefully explain your rights, and offer trusted legal advice. If we believe we can help you obtain compensation for the harm done to you, we would be honoured to offer to become your tireless advocate and trusted legal representative.
At Jellinek Ellis Gluckstein, our trauma-informed sexual assault lawyers always put your needs first and ensure you are supported as you make key decisions - including whether to proceed with a lawsuit in which you must be named.
Although a civil court justice may not consider naming you as an action that would cause you irreparable harm, we believe you should be the person to ultimately make that assessment. Fortunately, unlike criminal cases, in which police decide whether to bring charges and survivors are witnesses, plaintiffs in civil cases have a much greater degree of control over certain aspects of proceedings - including starting, pausing, or withdrawing from the lawsuit.
To learn more about our firm’s commitment to full-circle client care and how we may be able to support you on your healing journey, contact our Toronto sexual abuse lawyers today.