Defendant faces allegations of invasion of privacy and public disclosure of private facts
The Superior Court of Justice of Ontario recently granted a plaintiff’s motion for anonymity in a case involving sexual assault allegations while denying a similar request from the defendant.
The parties in this case used to date. The plaintiff then sued the defendant. Her claims against him included sexual assault and battery, invasion of privacy (including intrusion upon her seclusion), public disclosure of her private facts, the tort of voyeurism, and breach of trust, confidence, and fiduciary duty.
The plaintiff alleged that the defendant took an intimate photograph of her without her knowledge or consent while they were dating. Discovering its existence led to depression, panic attacks, and suicidal ideation, she claimed.
Both parties filed motions seeking court orders for anonymity. They wanted court documents and reports to identify them only by initials or pseudonyms. The plaintiff cited her belief that making her name public would potentially subject her to bullying and harassment.
The defendant, on the other hand, said that he wanted to protect his reputation and employment, especially because he worked in a women-owned business that valued public trust. He alleged that, to safeguard the plaintiff’s privacy, the court should also protect his privacy, given that they were a known couple.
In F.K. v Shakibaian, 2024 ONSC 4250, the Ontario Superior Court of Justice applied the legal test established in Sherman Estate v Donovan, 2021 SCC 25, which imposed a high threshold for limiting the open court principle. Ultimately, the court granted an order for anonymity in the plaintiff’s favour but not in the defendant’s.
Under the framework in Sherman Estate, a party seeking an order should show that court openness would pose a serious risk to an important public interest, that they would need a court order to prevent this risk, and that the order’s benefits would outweigh any negative effects.
First, in the plaintiff’s case, the court decided that court openness presented a serious threat to the plaintiff as an alleged sexual assault victim. Second, the court noted that she was not seeking a sealing order but was only requesting anonymity and the removal of identifying information to protect her privacy.
Lastly, the court found that the benefits of lessening the trauma of alleged sexual assault victims and encouraging them to report sexual misconduct outweighed the negative consequences.
On the other hand, the court rejected the defendant’s motion for anonymity. The defendant failed to show that including his identity in court documents and reports would pose a serious risk to his personal dignity or would jeopardize an important public interest, the court explained.
