2020 NLSC 6, 2020 NLSC 6

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : John Doe (Re) , 2020 NLSC 6 Date : January 14, 2020 Docket : 201901G7259 In The Matter of an Application by John Doe to commence an action in this Honourable Court using a pseudonym; And In The Matter of an intended action between John Doe as Intended Appellant/Applicant, and a Regulator of Professionals as Respondent Before: Justice David B. Orsborn Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: January 10, 2020

Summary: X, an employed lawyer, applied to commence under a pseudonym proceedings seeking to challenge disciplinary sanctions imposed on X by the Law Society of Newfoundland and Labrador and to obtain statutorily-contemplated relief from the requirement that the sanction decision be published. X claimed that, should the decision become public, X’s employer would terminate the employment relationship. Held: The application was dismissed. The interests for which X sought protection were personal.

Any damage to those interests as a result of public knowledge of X’s name and the sanction decision did not rise to the level of a serious risk to the administration of justice. Appearances: Gregory A. French, Q.C. Appearing on behalf of the Applicant

Aimee N. Rowe Appearing on behalf of a Regulator of Professionals (The Law Society of Newfoundland and Labrador) Authorities Cited: CASES CONSIDERED: R. v. Mentuck , 2001 SCC 76 ; Vancouver Sun, Re , 2004 SCC 43 ; A.B. (Litigation Guardian of) v. Bragg Communications Inc. , 2012 SCC 46 ; N. (S.) v. Alberta , 2006 ABQB 115 . STATUTES CONSIDERED: Law Society Act, 1999 , S.N.L. 1999, c. L-9.1 . REASONS FOR JUDGMENT Orsborn, J. : INTRODUCTION AND ISSUE [ 1 ] This is an application for leave to commence and continue proceedings using a pseudonym.

It calls for consideration of the interests of the public in open and transparent court proceedings and the employment and financial interests of the applicant. [1] BACKGROUND [ 2 ] The applicant (“X”) is an employed lawyer. The Law Society of Newfoundland and Labrador (“Law Society”) received an allegation of misconduct by X. The conduct in question precedes 2017 and precedes X’s current employment. The record does not disclose the nature of the conduct.

X’s employer has for some time been aware of the conduct in question. [ 3 ] Following a rather lengthy delay, the allegation was, pursuant to the disciplinary process of the Law Society, referred to an adjudication tribunal. X pled guilty to the allegation; the tribunal imposed a short suspension from membership and a somewhat longer period of practice restrictions (the “sanction decision”). According to X, both the suspension and the practice restrictions “fit” X’s current employment. [ 4 ] Because a suspension and a practice restriction were imposed, section 51(3) of the Law Society Act, 1999 , S.N.L. 1999, c.

L- 9.1 (the “ Act ”), requires the Law Society, unless a court orders otherwise, to publish the decision of the adjudication tribunal: 51. …

(3) The society shall publish a

summary of a decision or order of an adjudication tribunal in a newspaper of general circulation in or nearest to the community in which the respondent practises within 14 days of the expiry of the appeal period under

section 55.2, unless a court orders otherwise, where the decision or order (

a) suspends the respondent; … (

c) restricts the respondents practice; …

(4) The

summary of the decision published under subsection (3) shall include (

a) the name of the respondent and the address where he or she practises;

(

b) the date, location and a brief description of the conduct of the respondent that was found to be deserving of sanction; … [ 5 ] X filed an affidavit – the only evidence before the Court – stating that if the sanction decision becomes public, X’s employment will be terminated. X deposes: 12. When my employer was made aware of this proceeding and my supervisor was required to confirm my undertaking to the CAC [Complaints Authorization Committee of the Law Society], I expected to be terminated.

My employer, which had just gone through a rigorous hiring process with me … stood by me, but advised that if I was unable to resolve the matter and if it was publicized in any way, such as through a notice of hearing, a public hearing or published decision, my employment would be terminated.

The position of my employer has not changed – if these proceedings are published in any way which identifies me, my employment will be terminated. [ 6 ] X wishes to apply for a Court order stopping the publication – as contemplated by section 51(3) of the Act – and also wishes to challenge the sanction decision by way of statutory appeal and/or judicial review.

If X is successful in challenging the decision to the extent that the suspension and practice restrictions are lifted, the Law Society is not then required to publish the decision of the tribunal. [ 7 ] X’s position is that any disclosure of X’s name – with the corollary disclosure and publicly available knowledge of X’s misconduct and the sanction decision – will cause the loss of X’s employment and corresponding financial loss to X and X’s family.

Accordingly, X wishes to bring the proposed applications under a pseudonym and, as necessary, seek whatever relief may be needed to keep X’s name from becoming public. [ 8 ] X says that if X’s name is publicly associated with the proceeding, it will not matter if, in the end, the requested relief is granted, since the loss of employment condition will have been triggered. [ 9 ] X takes the position that there is an ‘entitlement’ to the publication relief contemplated in section 51(3) of the Act and argues that, if the pseudonym relief is not granted, that entitlement to relief becomes illusory and of no benefit since the proceedings themselves – and hence X’s misconduct – will become public and X’s employment terminated. [ 10 ] Before turning to consideration of the competing interests, a word about the evidence.

As mentioned, the only evidence is X’s affidavit setting out X’s understanding of the employer’s position. As will be seen, in the final analysis, I do not find it necessary to critically assess the likelihood of the loss of X’s employment; but had it been necessary to do so, firsthand evidence from the employer would have been helpful.

Given that it is not the fact of the conduct and suspension but rather the public knowledge of such conduct and suspension that is apparently of concern to the employer, and given that the employment relationship has been maintained for some period of time since the employer became aware of the allegation and subsequent discipline, direct evidence from the employer would have been of benefit in assessing the likelihood of damage to X’s interests. I hasten to add that I express no opinion on the employer’s position as put forward by X.

ANALYSIS [ 11 ] Any request to restrict full public access to the Court and its proceedings requires the Court – absent statutory authority – to balance the interests of the public in an open and transparent system of judicial adjudication and the interests said to be at risk of harm or loss in the absence of protection from public knowledge. [ 12 ] In R. v. Mentuck , 2001 SCC 76 , the Supreme Court of Canada engaged in a comprehensive discussion of publication bans and said this at paragraphs 32-39: 32 … A publication ban should only be ordered when: (

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (

b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. … 34 … The first branch of the test contains several important elements that can be collapsed in the concept of “necessity”, but that are worth pausing to enumerate. One required element is that the risk in question be a serious one, or, as Lamer C.J. put it at p. 878 in Dagenais , a “real and substantial” risk.

That is, it must be a risk the reality of which is well-grounded in the evidence. It must also 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 that isrequired, not a substantial benefit or advantage to the administration of justice sought to be obtained. 35 A second element is the meaning of “the proper administration of justice”. I do not wish to restrict unduly the kind of dangerswhich may make a ban necessary, as discretion is an essential aspect of the common law rule in question.

However, judges should becautious in deciding what can be regarded as part of the administration of justice.… … 37 It also bears repeating that the relevant rights and interests will be aligned differently in different cases, and the purposes andeffects invoked by the parties must be taken into account in a case-specific manner.… … 39 It is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is sostrong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a ban.

Effectiveinvestigation and evidence gathering, while important in its own right, should not be regarded as weakening the strong presumptivepublic interest, which may go unargued by counsel more frequently as the number of applications for publication bans increases, in atransparent court system and in generally unrestricted speech on matters of such public importance as the administration of justice. [13] Three years later, in Vancouver Sun, Re, 2004 SCC 43, the court reaffirmed the foundational nature of the “open courtprinciple” saying at paragraphs 24-25: 24 The open court principle has long been recognized as a cornerstone of the common law: Canadian Broadcasting Corp. v.

NewBrunswick (Attorney General), supra, at para. 21. The right of public access to the courts is “one of principle ... turning, not onconvenience, but on necessity”: Scott v. Scott, [1913] A.C. 417 (U.K. H.L.), per Viscount Haldane L.C., at p. 438. Justice is not acloistered value”: Ambard v. Attorney General for Trinidad & Tobago, (UK JCPC), [1936] A.C. 322 (Trinidad &Tobago P.C.), per Lord Atkin, at p. 335. “[P]ublicity is the very soul of justice. It is the keenest spur to exertion, and the surest of allguards against improbity”: J.H.

Burton, ed., Bethamiana or, Select Extracts from the Works of Jeremy Bentham (1843), p. 115. 25 Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 22.Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice systemand the public’s understanding of the administration of justice.

Moreover, openness is a principal component of the legitimacy of thejudicial process and why the parties and the public at large abide by the decisions of courts. [14] After referring to the Mentuck test set out above, the court confirmed that this test applies to all requests to limit access tojudicial proceedings: 31 While the test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judgeto limit freedom of expression by the press during judicial proceedings.

Discretion must be exercised in accordance with the Charter,whether it arises under the common law, as is the case with a publication ban (Dagenais, supra; Mentuck, supra); is authorized bystatute, for example under s. 486(1) of the Criminal Code which allows the exclusion of the public from judicial proceedings in certaincircumstances (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 69); or under rules of court, forexample, a confidentiality order (Sierra Club of Canada v.

Canada (Minister of Finance), [2002] 2 S.C.R. 522, 2002 SCC 41 (S.C.C.)).The burden of displacing the general rule of openness lies on the party making the application: Canadian Broadcasting Corp. v. NewBrunswick (Attorney General), supra, at para. 71. [15] More recently, in A.B. (Litigation Guardian of) v. Bragg Communications Inc., 2012 SCC 46, the court considered a request bya young plaintiff to commence a defamation proceeding using a pseudonym.

The claim was for damages said to be caused bycyberbullying – the posting of a fake and unflattering profile on Facebook. [16] Speaking for the court, Abella J. introduced the discussion at paragraphs 10-13: 10 A.B.’s appeal to this Court is based on what she says is the failure to properly balance the competitive risks in this case: the harminherent in revealing her identity versus the risk of harm to the open court principle in allowing her to proceed anonymously and under apublication ban.

Unless her privacy is protected, she argued, young victims of sexualized cyberbullying like her will refuse to proceedwith their protective claims and will, as a result, be denied access to justice. 11 The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media. Thisprinciple has been described as a “hallmark of a democratic society” (Vancouver Sun, Re, 2004 SCC 43 , [2004] 2 S.C.R. 332

(S.C.C.), at para. 23) and is inextricably tied to freedom of expression. A.B. requested two restrictions on the open court principle: theright to proceed anonymously and a publication ban on the content of the fake Facebook profile. The inquiry is into whether each ofthese measures is necessary to protect an important legal interest and impairs free expression as little as possible. If alternative measurescan just as effectively protect the interests engaged, the restriction is unjustified.

If no such alternatives exist, the inquiry turns to whetherthe proper balance was struck between the open court principle and the privacy rights of the girl: Dagenais v. Canadian BroadcastingCorp., (SCC), [1994] 3 S.C.R. 835 (S.C.C.); R. v. Mentuck, 2001 SCC 76 , [2001] 3 S.C.R. 442 (S.C.C.). … 13 Since Edmonton Journal v. Alberta (Attorney General), (SCC), [1989] 2 S.C.R. 1326 (S.C.C.), the criticalimportance of the open court principle and a free press has been tenaciously embedded in the jurisprudence and need not be furtherrevisited here.

What does need some exploration, however, are the interests said to justify restricting such access in this case: privacy andthe protection of children from cyberbullying. These interests must be shown to be sufficiently compelling to warrant restrictions onfreedom of the press and open courts. As Dickson J. noted in MacIntyre v.

Nova Scotia (Attorney General), (SCC),[1982] 1 S.C.R. 175 (S.C.C.), there are cases in which the protection of social values must prevail over openness (pp. 186-87). [17] Bragg points out that the use of a pseudonym is a minimal impairment of the public’s right of access to the court and itsproceedings. At paragraph 28: 28 … In other words, the harm has been found to be “minimal”.

This perspective of the relative insignificance of knowing a party’s identitywas confirmed by Binnie J. in F.N. where he referred to identity in the context of the Young Offenders legislation as being merely a“sliver of information”: N. (F.), Re, 2000 SCC 35 , [2000] 1 S.C.R. 880 (S.C.C.), at para. 12. [18] However, all of the circumstances must be considered. The identity of a young plaintiff in a cyberbullying case is one thing.

The identity of a lawyer who is challenging the disciplinary decision of a professional body acting in the public interest and pursuant tostatute, where the discipline is a consequence of the conduct of the lawyer in question, is another matter. In my view, concealing theidentity of the lawyer, even for the limited purposes proposed by X, represents a greater than minimal intrusion on the public’s right tobe aware of the full proceedings. [19] But it is not necessary for present purposes to engage in a balancing exercise.

In order to consider whether any limitation onpublic access is warranted, the right or interest for which protection is claimed must go beyond the merely personal. The evidence mustestablish that not protecting the right will have some adverse inference on the administration of justice. As expressed by Slatter J., as hethen was, in N. (S.) v. Alberta, 2006 ABQB 115, at paragraph 7: 7 … The Toronto Star decision implies that court proceedings should be sealed only where disclosure would subvert the ends of justice orunduly impair its proper administration.

The decision does not specifically cover the situation where disclosure of the party’s name mightcause damage or injury to the plaintiff. [20] In Bragg, the court was satisfied that there would be “objectively discernable” harm to A.B. if she was not permitted to proceedanonymously. This is a personal interest.

But the court went on to point out that there was a public societal value in protecting “theinherent vulnerability of children”, that a lack of anonymity may dissuade children from reporting and pursuing legal action in respect ofcyberbullying, and that: 26 Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media canexacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities. (See e.g., UNICEFInnocenti Research Centre, Child Safety Online: Global challenges and strategies (2011), at pp. 15 — 16; and R. v.

H. (D.), 2002 BCPC464 (B.C. Prov. Ct.), at para. 8). [21] These considerations supported the conclusion that what was at risk was not just a personal privacy interest, but also theinterests of society in allowing safe access to the justice system to address children’s claims of cyberbullying. [22] In this case, the interests that X seeks to protect are purely private and personal.

Accepting fully X’s evidence that the employerwill indeed terminate X’s employment if information on X’s conduct and professional sanction enters the public domain, the interests atrisk are primarily financial – in terms of loss of employment – and personal in the sense of wishing to avoid embarrassment. [23] X has not met the burden of establishing that the requested anonymity order is necessary “to protect a serious risk to theadministration of justice”. CONCLUSION

[ 24 ] The application is dismissed. The Law Society is entitled to its Column 3 costs. _____________________________ David B. Orsborn Justice