When a personal injury claim proceeds to trial oftentimes publicly available reasons for judgement are published which are accessible by all. These frequently reveal details about a Plaintiff’s health, limitations, injuries and other personal details. Reasons for judgement were released discussing if a Plaintiff should be granted anonymity in published reasons for judgement. In short, the Court held that absent exceptional circumstances, such privacy protections should not be granted.
In the recent case (Davidge v. Fairholm) the Plaintiff, who was injured in a collision, asked for anonymity on the basis that “ publishing the plaintiff’s name might hurt him in his employment, as his employer might treat him differently after learning about his medical issues. This is because the plaintiff works in employment that involves some physical stress on his body”. ICBC objected to the reqest for privacy. In denying the Plaintiff’s request Madam Justice Griffin provided the following reasons:
 The law is clear that anonymizing a judgment by substituting initials for a litigant’s name should only occur in rare circumstances, such as where it is necessary to protect a vulnerable litigant or a vulnerable person who can be identified through the litigant.
 I find that there is nothing exceptional about this case which requires a publication ban on the name of the plaintiff. There is no more of an invasion of privacy in this case than in an ordinary case and the plaintiff is not a vulnerable person.
 I also note that if publication bans were a matter of course in personal injury trials this could negatively impact the administration of justice. There are sound reasons for publishing the names of litigants. One benefit of the open court principle is that it brings home to a person who testifies the importance of telling the truth and increases the potential consequences of failing to do so. This is one reason the Third Party’s opposition to such an application is an important factor to weigh.
 The application to anonymize the judgment is therefore refused.
This is a little off topic but thought this may be of interest for my readers.
Trials are a matter of public record and Canada’s open-court principle can sometimes create legitimate privacy concerns for litigants. The BC Supreme Court published reasons for judgement today addressing such a concern.
In today’s case (Mainstream Canada v. Staniford) a blog entry was posted during a trial referring to two witnesses who testified that “It is not clear if they both cycled to the courtroom – but there were echoes of Queen’s classic 1978 hit “Fat-Bottomed Girls” playing as they both took the stand.”
The Plaintiff’s lawyer brought an application for a direction that the Defendant “refrain from making postings referring to witnesses in any derogatory or disparaging fashion that may have the effect of victimizing a witness or witnesses who are testifying, or may have testified, at this trial.” Madam Justice Adair refused to make such an order but in doing so provided the following reminder to the litigants:  I am going to quote from Lord Denning’s judgment in the case of Attorney-General v. Butterworth,  3 All E.R. 326 (C.A.). This is a decision of the English Court of Appeal. It is from 1962. But in my view it is still well worth quoting, and well worth reminding counsel, parties and those present in this courtroom, concerning issues relating to the administration of justice and the appropriate and fair treatment of witnesses who come forward, often under the compulsion of a subpoena, to give evidence and perform their civic duty in a trial.  Lord Denning says (in the context of ruling on an application that individuals be found in contempt of court), at p. 329: For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimize him afterwards for having given it. How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he had given? After he has honestly given his evidence, is he to be liable to be dismissed from his office, or to be sent to Coventry [a reference that perhaps had more resonance in 1962 than it does now, but essentially meaning banished or punished] simply because of that evidence which he has given? I decline to believe that the law of England permits him to be so treated. If this sort of thing could be done in a single case with impunity, the news of it would soon get round. Witnesses in other cases would be unwilling to come forward to give evidence, or, if they did come forward, they would hesitate to speak the truth, for fear of the consequences.  Further down at p. 329, Lord Denning says: I have no hesitation in declaring that the victimization of a witness is a contempt of court whether it be done whilst the proceedings are still pending or after they have finished.  In my view, it is clear from Lord Denning’s remarks that the court takes the intimidation or the victimization of a witness extremely seriously and is willing to use its contempt powers to punish that conduct.  Having said that, in the light of the submissions made by Mr. Sutherland concerning the live issues in this case relating to the conduct of Mr. Staniford – his conduct of the case inside and outside the court – I am not going to give the direction sought by Mr. Wotherspoon. However, my expectation is that the parties and those present in this courtroom will take very seriously Lord Denning’s comments which I have read out and which I adopt.
Occasionally Canadian Courts make exceptions to the open court principle and allow litigants to sue under a pseudonym and further place publication bans in place. Reasons for judgement were released today by the Supreme Court of Canada grappling with these issues in the context of a ‘cyberbullying‘ lawsuit involving an infant plaintiff.
In today’s decision (AB v. Bragg Communications Inc.) the Plaintiff, a 15 year old girl, found someone ” had posted a Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. Accompanying the picture was some unflattering commentary about the girl’s appearance along with sexually explicit references.”. She commenced legal proceedings seeking to uncover the identity of the person who posted this. She further sought to do so anonymously and asked for the protection of a publication ban. In a unanimous decision the Supreme Court of Canada held that Plaintiff anonymity was appropriate in these circumstances but that a publication ban beyond information which could identify the Plaintiff was not warranted. Justice Abella provided the following reasons:  In the context of sexual assault, this Court has already recognized that protecting a victim’s privacy encourages reporting: Canadian Newspapers Co. v. Canada (Attorney General),  2 S.C.R. 122. It does not take much of an analytical leap to conclude that the likelihood of a child protecting himself or herself from bullying will be greatly enhanced if the protection can be sought anonymously. As the Kids Help Phone factum constructively notes (at para. 16), protecting children’s anonymity could help ensure that they will seek therapeutic assistance and other remedies, including legal remedies where appropriate. In particular, “[w]hile media publicity is likely to have a negative effect on all victims, there is evidence to be particularly concerned about child victims. . . . Child victims need to be able to trust that their privacy will be protected as much as possible by those whom they have turned to for help”: Lisa M. Jones, David Finkelhor and Jessica Beckwith, “Protecting victims’ identities in press coverage of child victimization” (2010), 11Journalism 347, at pp. 349-50.  Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities. (See e.g., UNICEF Innocenti Research Centre, Child Safety Online: Global challenges and strategies (2011), at pp. 15–16; and R. v. D.H., 2002 BCPC 464 (Can LII), at para. 8).  If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully. ..  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.  On the other hand, as in Canadian Newspapers, once A.B.’s identity is protected through her right to proceed anonymously, there seems to me to be little justification for a publication ban on the non-identifying content of the fake Facebook profile. If the non-identifying information is made public, there is no harmful impact since the information cannot be connected to A.B. The public’s right to open courts and press freedom therefore prevail with respect to the non-identifying Facebook content.  I would allow the appeal in part to permit A.B. to proceed anonymously in her application for an order requiring Eastlink to disclose the identity of the relevant IP user(s). I would, however, not impose a publication ban on that part of the fake Facebook profile that contains no identifying information.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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