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Pseudonym use possible in some civil sex assault cases

The open court principle remains central to our justice system, but pseudonyms are a viable option for a subset of plaintiffs in civil sexual assault cases who can show they will incur irreparable harm if they use their own names, Toronto civil litigator Anna Matas writes in Canadian Lawyer.

“In my plaintiff-side practice, I help survivors of sexual violence obtain financial compensation for the harms they have suffered as the result of sexual assault and sexual abuse. When speaking with potential clients, one of the most common questions I am asked is whether they will have to use their real name if they sue their abuser or an institution that may be vicariously liable for the abuser’s actions. Generally, the answer is ‘yes,’” writes Matas, an associate with Lerners LLP.

Unlike the criminal system, where publication bans are the norm in sexual assault cases, in the civil system, says Matas, the default position as outlined in Rule 14.06(1) of the Ontario Rules of Civil Procedure requires the title of proceedings in any action set out the names of all parties.

However, in certain circumstances, says Matas, plaintiffs may make use of a pseudonym.

“Traditionally, the courts have used a three-part test, similar to the test for an injunction. A person seeking to use a pseudonym must first establish there is a serious issue to be tried; second, that absent a pseudonym he or she is likely to suffer irreparable harm; and third, that the balance of convenience favours the use of a pseudonym.”

While allegations of sexual assault generally meet the first threshold, in order to succeed on the second step, a party wishing to use a pseudonym “must adduce compelling medical or psychological evidence, normally from a treating professional, with respect to the harm the particular plaintiff may suffer if required to proceed with an action in his or her own name,” says Matas.

For the third part of the test, plaintiffs must demonstrate that the balance of convenience weighs in favour of protecting his or her identity.

“This requires a determination not only of the interests of the plaintiff and any defendants but also the interests of the public,” writes Matas.

“In civil sexual assault cases, public interest weighs in favour of anonymity, as protecting the identity of sexual assault victims contributes to the likelihood that the assault will be reported, and has been shown to increase victims’ co-operation with authorities,” she writes.

Anonymity also protects against the exacerbation of trauma which may be experienced by victims as a result of publicity relating to the case. However, Matas notes that the court must also consider the interests of the defendant, which usually weigh in favour of disclosure. Many defendants argue that a pseudonym hinders his or her ability to mount a robust defence, and takes away the opportunity for public scrutiny.

Nevertheless, for the subset of individuals who can demonstrate they will incur irreparable harm if required to proceed with a case in their own names, pseudonyms remain a viable and achievable option for permitting justice in those cases. “In general, where compelling evidence of irreparable damage has been adduced, the courts will find that the balance of convenience weighs in favour of anonymity,” writes Matas.

This article originally appeared on AdvocateDaily.com

Anna Matas

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