“At the outset of the trial, the Respondent brought a motion for an order initializing the names of the parties in this proceeding. The Applicant consented to the motion.
An order initializing the names of parties to a proceeding is a restriction on the open court principle which is fundamental to the Canadian justice system and protected by s. 2(b) of the Canadian Charter of Rights and Freedoms: Vancouver Sun (Re), 2004 SCC 43 (CanLII), [2004] 2 S.C.R. 332. Regardless of the Applicant’s consent, I must still determine whether the Respondent has met the test for an order initializing the parties’ names.
In Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 S.C.R. 442 the Supreme Court of Canada set out a two part test to be applied where a court is asked to order that public access to a court file be limited or restricted. Because of the importance of the open court principle in the common law and our democratic society, the test for restricting public access to judicial proceedings is a stringent one. The party seeking an order restricting access to the file must establish that:
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- The order is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and,
- 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.
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The Respondent argues that the parties’ identities should be protected because there is a risk of harm to the safety and security of future children or family members of both parties if they were to learn the details of this case.
The Applicant is 41 years old. The Respondent is 63 years old. There is no evidence before the Court that either party has children or that a serious risk of emotional or other harm would result if any of their respective adult family members were to discover the existence and facts of this case.
The Respondent may be embarrassed and not want the details of his private life to be part of the public court record, but this is not sufficient to justify limiting the open court principle. “A litigant’s personal interest in keeping certain litigation details private cannot establish the “necessity” branch of the Dagenais/Mentuck test. Rather, the jeopardized interest must have a public component…there must be convincing evidence of harm to the administration of justice.”: L.C.F. v. G.F. 2016 ONSC 6732 at paras. 32, 36 and 37.
I find that the Respondent has not met the test in Dagenais/Mentuck. The motion for an order initializing the names of the parties is dismissed.”