Coquitlam Lawyer: Anonymity, Assault Claims, & the BC Supreme Court
In the BC Supreme Court (BCSC), at times, plaintiff’s will seek to bring a legal proceeding anonymously. Instances where this occur includes when sensitive issues arise and/or when public service professionals would rather not have their name plastered on public record.
Sexual assault/abuse victims have a legal right to sue the defendant, anonymously.
The recent case of H.N. v. The Board of Education of School District No. 61 (Greater Victoria), 2021 BCSC 1096, canvassed the law pertaining to such anonymous court proceedings. This was a case where the plaintiff was suing his/her former school district for sexual assault and abuse. Ultimately, in this case, the Court agreed with the plaintiff’s name restricted to a pseudonym.
If you are a victim of an assault and are reluctant to bring a lawsuit against the accused defendant, please do not be. You have the legal right to bring forth a claim anonymously where your name and life will not be exposed to the public. Your lawyers, and often the Courts, will support your right to privacy.
If you would like to learn more about your rights, please click on the button below and fill-out the form or email us at: vsm@tricitylegal.ca.
Everything will remain confidential and privileged.
In H.N., for example, needless to say, the information was sensitive including the victim’s identity. In this case, Mr. Justice Punnett notes as follows:
[5] The request for an anonymity order arises in cases such as this as it involves a survivor of sexual assault and sexual misconduct hence the nature of the allegations go to the root of an individual's sense of self‑worth and integrity. It is submitted there is an objectively discernible harm to them that could well result in them not pursuing legitimate claims if not protected by an anonymity order.
[6] There is no question the Court has discretion to issue anonymity orders pursuant to its inherent jurisdiction. Mr. Justice Joyce in C.W. v. L.G.M., 2004 BCSC 1499 observed:
[6] There is no statute or rule in this province that sets out when persons may conduct proceedings anonymously using only their initials or pseudonyms or that restricts public access to court files, other than family law proceedings, or prohibits publication of information concerning the parties to or particulars of civil actions. The power to make orders of the kind sought by the plaintiff depends on the inherent jurisdiction of the court. I am satisfied such jurisdiction exists. The question is whether it is appropriate to exercise it in the circumstances of this case.
[7] The Supreme Court of Canada in two decisions, Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck, [2001] 3 S.C.R. 442 set out the framework, to be applied to all discretionary judicial orders limiting the openness of the court system. Those two decisions set out the framework as involving two competing public interests. The first, maintaining open and accessible judicial proceedings, and the second, protecting the plaintiff's safety, personal security and right to privacy and encouraging sexual assault victims to pursue their claims.
[8] In Hirt v. College of Physicians and Surgeons of B.C., 1985 CanLII 361 (BC CA), the court at paragraph 36 stated:
It is demonstrably justifiable in a free and democratic society that the openness rule be restricted to protect the innocent, when, as this case, nothing will be accomplished by publicizing the identities of the persons who have complained about the abuse of a doctor‑patient relationship.
[9] The court noted that in that case the public had access to all the facts except the names, and that in the view of the court the absence of their names did not interfere with the open‑court principle or access to such proceedings to show that justice was being done in a fair and public manner.
[10] This is emphasized again in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 SCR 567. An anonymity order there was permitted and the Court:
[29] The acknowledgment of the relative unimportance of the identity of a sexual assault victim is a complete answer to the argument that the non‑disclosure of the identity of a young victim of online sexualized bullying is harmful to the exercise of press freedom or the open courts principle. Canadian Newspapers clearly establishes that the benefits of protecting such victims through anonymity outweigh the risk to the open court principle.
[11] In C.W. Joyce J. at para. 26 stated disclosure of the identity of an alleged victim would destroy the right of confidentiality. It would deter people from seeking access to the courts. There would be little public benefit, and the mere disclosure of their identity would cause them to suffer additional damages. Anonymity in the pre‑trial process would not impair the court's ability to achieve a just result between the parties.
[26] I am of the opinion that there is a superordinate social value or public interest in protecting victims of sexual abuse from further injury. Victims of sexual abuse should not be deterred from seeking compensation in the court because the process will cause further harm. I am of the view that plaintiffs who claim damages for sexual abuse are entitled to orders protecting their anonymity during the pre-trial process if they establish that: (a) public exposure in the very process by which they seek compensation from the perpetrator of the abuse will cause additional harm; (b) permitting them to prosecute their claims without disclosure of their identity at every stage of the proceeding will not impair the defendants’ ability properly to defend themselves; and (c) anonymity in the pre-trial process will not impair the court’s ability to achieve just results between the parties.
[12] The Supreme Court of Canada in A.B. v. Bragg Communications Inc., [2012] S.C.J. No. 46 addressed the need for expert evidence relating to the harm suffered by a plaintiff, stated:
9 In my view, both courts erred in failing to consider the objectively discernable harm to A.B. I agree with her that she should be entitled to proceed anonymously, but once her identity has been protected, I see no reason for a further publication ban preventing the publication of the non-identifying content of the fake Facebook profile.
...15 The amicus curiae pointed to the absence of evidence of harm from the girl about her own emotional vulnerability. But, while evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm.
[13] The Court also highlighted at paragraphs 23 and 25 the inevitable harm to children and the administration of justice if steps are not taken to protect them from the risks that arise from further public disclosure.