John Doe v Edmonton Public School District No 7, 2019 ABQB 952

Court of Queen’s Bench of Alberta Citation: John Doe v Edmonton Public School District No 7, 2019 ABQB 952 Date: 20191212 Docket: 1903 15041 Registry: Edmonton Between: John Doe Applicant - and - Edmonton Public School District No 7 and Office of the Information and Privacy Commissioner Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.E.

Richardson _______________________________________________________ [ 1 ] On July 24, 2019, the Applicant filed an Originating Application seeking judicial review of a July 18, 2019 decision of the Office of the Information and Privacy Commissioner which upheld a decision of an Edmonton school to deny part of the Applicant’s request under the Freedom of Information and Privacy Act ( FOIP ). The July 18, 2019 decision identifies the school, but not the Applicant. [ 2 ] In the Originating Application, the Applicant listed “John Doe” in the style of cause.

The Applicant then filed an Application for an Order Restricting Access. The following issues are raised on the materials: 1. Will the Applicant be permitted to use the pseudonym “John Doe” in the judicial review proceeding? 2. Will the entire court file, except for the Originating Application and reasons for judgment, be sealed? and

3. Will the court impose a publication ban on any information that could identify the Applicant? For the reasons set out below, all three requests are denied. [3] Counsel for the Office of the Information and Privacy Commissioner and the Edmonton Public School Board both appearedand advised that they took no position on the application.

However, each provided case law to assist the court and indicated that thematter must be resolved quickly as the judicial review date has been set and the Office of the Information and Privacy Commissioner isrequired to file the record of the proceeding that led to the July 18, 2019 decision. In the absence of a decision on the Applicant’srequest, counsel took a cautious approach and has not yet filed any material. [4] The open court principle is the foundation of a democratic, transparent and accountable justice system.

It dictates that courtproceedings are presumptively open and accessible to the public and this includes unfettered access to court filings, hearings anddecisions. (See AB v Bragg Communications Inc, 2012 SCC 46 at para 11 and Vancouver Sun (Re), 2004 SCC 43 at para 23). [5] A court order is required for any person seeking to bring or respond to an action under a pseudonym. The order is a form ofpublication ban.

Subject only to exceptional circumstances where a pseudonym or initials may be used, a person who chooses tocommence a court proceeding must do so publicly. (See Amyotrophic Lateral Sclerosis Society of Essex County v Windsor (City), 2019ONCA 344 at para 25). [6] The Supreme Court of Canada established the test for granting a publication ban in Dagenais v Canadian BroadcastingCorp, and R v Mentuck, 2001 SCC 76.

Subsequent considerations of the Dagenais-Mentuck test by the Supreme Courtconfirm that this test applies to all discretionary orders that affect the openness of proceedings, including allowing a party to proceedanonymously. (See AB; Canadian Broadcasting Corp v The Queen, 2011 SCC 3 at para 13). [7] The Applicant must establish first, that the requested order is necessary “to prevent a serious risk to the properadministration of justice because reasonably alternative measures will not prevent the risk; and second, that the salutary effects of theorder outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to freeexpression…and the efficacy of the administration of justice.” (See Mentuck at para 32). [8] The two-step Dagenais-Mentuck test requires that the Applicant establish the necessity of the order and then the court mustbalance of the positive and negative effects flowing from the requested order. (See R v Toronto Star Newspapers Ltd, at para 20 (Ont CA) [Toronto Star], aff’d 2005 SCC 41). [9] The risk in the first prong of the test, as noted by Iacobucci J in Mentuck at para 34, must be: … a risk that poses a serious threat to the proper administration of justice.

In other words, it is a serious danger sought to be avoided thatis required, not a substantial benefit or advantage to the administration of justice sought to be obtained. [10] The Applicant seeks to proceed anonymously in order to prevent people from making online comments about him or to him.He filed an affidavit stating that “Ever since the media has reported on some of my…complaints, I’ve had to endure retaliation online inthe form of harassment and conditional threat(

s) of bodily harm”. This evidence does not meet the first prong of the Dagenais-Mentucktest. There is no serious risk to the proper administration of justice to warrant permitting the Applicant to use a pseudonym. Onlinecomments are an ordinary part of public digital discourse. There are multiple social media sites that permit public comments. Politicians, professors, journalists and others whose profession brings them into public view are regularly the subject of negative orcontrary online comments. It is not infrequent that such comments veer into invective.

The Applicant is an adult and is the one whoinitiated the judicial review. Unlike the need to protect children from victimization of cyberbullying, online comments pertaining to theApplicant do not pose a serious danger to the proper administration of justice which must be avoided. [11] The Applicant provided the case of Re: Tuckwell, 2016 ABQB 302, where the court allowed Mr. Tuckwell’s request to shieldfrom the publication the names of his family members and his physicians on his application for court sanctioned medical assistance forhis death.

This case is distinguishable from the Applicant’s in several respects, not the least of which is that Mr. Tuckwell’s familymembers and physicians were not parties to the litigation. The court found that the physicians were providing a professional service andthat the process in place at the time (for court sanctioned approval of a request for medical aid in dying) was sufficient to ensure publicscrutiny. [12] There is also a line of authority that permits sexual assault victims to launch civil actions under a pseudonym.

The names ofsexual assault complaints in criminal litigation are subject to a mandatory publication ban under the Criminal Code.

Applying the firststep of the Dagenais-Mentuck test, there is an obvious risk to the proper administration of justice in not permitting people, whoseidentities are subject of a mandatory publication ban imposed by Parliament, to advance litigation in relation to that criminal complaintunder the same identity shield. [13] Applying the Dagenais-Mentuck test, for the same reasons, I am not satisfied that a publication ban on the Applicant’sidentity is necessary in order to prevent a serious risk to the proper administration of justice.

The Applicant complains online negativecomments have led him to make this request. However, there is no evidence that the comments are credible, he claims no fear as a resultof the comments and there is no evidence that the subject matter of the FOIP request or the judicial review are sensitive in a way thatcould engage a risk to the proper administration of justice. Therefore, the first threshold of the test has not been established. [14] Finally, the Applicant seeks an order sealing the entire court file, with the exception of the Originating Application and anyReasons for Judgment.

On this point, he relies on the same affidavit and includes the fact that he “also fears retaliation from people inthe Riverdale neighbourhood with regards to this judicial review because the [July 18, 2019] decision published online mentionsRiverdale and I worked at one of the out of school care centers in that neighbourhood…and have talked to people from thatneighbourhood as recently as 2019.” [15] Rule 6.34 deals with applications to seal a court file. As with requests to proceed anonymously, the Dagenais–Mentuck test

applies. A sealing order is an exceptional remedy. Evidence submitted to justify a sealing order must be “subject to close scrutiny and meet rigorous standards” ( R v Toronto Star Newspapers Ltd , supra , at para 19 ). [ 16 ] The judicial review application relates to a decision confirming a school’s decision to deny a FOIP request. The July 18, 2019 decision does not articulate the nature of the requested documents. There is nothing on the face of the Commissioner’s published decision that would engage a concern about a risk to the proper administration of justice.

The Applicant has not presented any evidence to support a finding that there is a risk to the public interest or to the administration of justice that warrants sealing the court file. (See Edmonton (Police Service) v Law Enforcement Review Board , 2013 ABCA 236 at para 13 ). [ 17 ] In the result, the style of cause will be amended to reflect the Applicant’s full legal name. The publication ban is denied. The court file will remain open to the public. Heard on the 5 th day of December, 2019. Dated at the City of Edmonton, Alberta this 12 th day of December, 2019. S.E. Richardson J.C.Q.B.A.

Appearances: John Doe Self-Represented Litigant Vicki Giles for Edmonton Public School Board Jillian A. Harker for the Office of the Information and Privacy Commissioner