Is there a way to commence a lawsuit without using your own legal name?
The short answer is that in Canada it’s possible but not plausible, particularly if there is no minor involved.
The Supreme Court of Canada* has rendered a series of decisions confirming that the openness of the court is a fundamental aspect of Canadian democracy. The public is generally entitled to have access to the courts, unless there are overriding concerns that warrants anonymity.
What are these overriding concerns?
To put it simply, the threshold is high.
Potential embarrassment is not sufficient reason. In B.(A.) v. Stubbs+, the plaintiff sought to use a pseudonym to sue a doctor for negligence with respect to a failed penile-enhancement procedure, claiming that the publicity generated by the action contemplated would be traumatic, and if the request was not granted, he would be denied access to court. The judge ultimately decided that the plaintiff had not established the likelihood of irreparable harm if the request was not granted.
In coming to the conclusion, the judge utilized a three-part test:
- whether there is a serious issue to be tried
- the likelihood of irreparable harm
- the balance of convenience between the parties
My research suggests that most cases fail at the second stage of the test.
For example, in John Doe v. B. (S.)**, the Supreme Court of Newfoundland and Labrador refused to grant an order permitting a plaintiff to commence an action anonymously. The intended plaintiff claimed damages for sexual assault, whereas the intended defendant was in fact later charged and convicted of criminal offences arising from the sexual abuse addressed. The judged reasoned that there was no evidence by affidavit or from medical health professionals respecting the consequences of proceeding without the order sought.
In M.(S.) v. C. (J.R.)++, the motion for commencing a civil action by way of pseudonym was dismissed because there was no compelling evidence of irreparable harm.
However, the request to remain anonymous isn’t impossible. In T.(S) v. Stubbs^, (a case against the same doctor Stubbs) the judge, relying on the evidence of the psychiatrist who was treating the plaintiff, found that the plaintiff would suffer irreparable harm if his identity were to be made public and granted the request.
