Becoming Jane or John Doe: Can Civil Litigants Use a Pseudonym to Protect Their Privacy?

Originally published in Canadian Privacy Law Review, Volume 7, Number 7

Whether litigants are suing or being sued, one of the first sacrifices they make is their privacy regarding the matters in dispute. The resulting public revelations can sometimes lead to embarrassment, or worse, which has been described as "an unavoidable consequence of an open justice system."1

Today's increased recognition of the importance of privacy interests may seem at odds with the limited recognition they receive in civil litigation. Litigants often ask, "Can I shield my identity from the public?" Usually, the answer to this question is no. The importance of an open court system is normally the overarching public policy imperative. The open court principle has been described as "the very soul of justice."2

Court processes exist, however, through which litigants can ask that their privacy be recognized. One such measure is to allow them to protect their privacy by using a pseudonym or initials instead of their legal name. Doing so is a protection against the public, not the opposite party. An examination of the developed law reveals that the use of initials or a pseudonym is not driven by the interests of protecting privacy per se, though there are suggestions that it may yet develop in that direction. This article explores and enumerates the limited circumstances in which a party can proceed using his or her initials, or become, for the purposes of the record, Jane or John Doe. For convenience, in this article we refer to both initials and Jane or John Doe as the use of "pseudonyms."

The Principle of Openness

A would-be Jane or John Doe must contend first with the strong presumption in favour of the "openness" of the courts, particularly in respect of judicial acts. In MacIntyre v. Nova Scotia (Attorney General),3 Justice Dickson (as he then was) quoted Jeremy Bentham's rationale for this presumption:

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.4

The presumption of openness is usually sufficient to dispose of the argument that the privacy rights of a party should be protected. As Dickson J. held,

Many times it has been urged that the 'privacy' of litigants requires that the public be excluded from court proceedings. It is now well-established, however, that covertness is the exception and openness the rule. Public confidence in the integrity in the court system and understanding of the administration of justice are thereby fostered.5

MacIntyre was a case about public access to executed search warrants and related informations, but the reasons advanced for the presumption of openness also apply in the civil context.6 In civil litigation, judges determine the rights of parties, and these judicial determinations are not truly open to public scrutiny if the identity of one of the parties is a secret. In consequence, subrule 14.06(1) of Ontario's Rules of Civil Procedure7 requires that the title of every court proceeding set out the names of all parties.

Openness is not merely a matter of guarding against "judicial injustice," as Bentham called it. Courts have observed that the use of pseudonyms gives rise to other concerns:

It is easier for false allegations against innocent defendants to be maintained if plaintiffs are not exposed to the full glare of public scrutiny. And an action involving an unnamed plaintiff will minimize the opportunity for third parties to come forward with knowledge of the case. This latter concern could work to the benefit or the detriment of either side in the case.8

The issue of third parties coming forward is not a concern about moral hazards affecting the judge or a party; rather, it is a concern about an impairment of the court's ability to discover the truth.

Each of these considerations informs the strong presumption in favour of openness and militates against the use of pseudonyms in civil...