IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140909

Docket: M112552

Registry:
Vancouver

Between:

Glen
Neal Davidge

Plaintiff

And

Brian
Douglas Fairholm

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice S. Griffin

Oral Ruling re Anonymization

[1]            
THE COURT:  At the end of trial, during closing submissions, the
plaintiff has applied to anonymize his name in any published judgment.  This is
a case in which the plaintiff is suing for damages for injuries suffered in a
motor vehicle accident.

[2]            
The basis for the application is the argument that publishing the
plaintiff’s name might hurt him in his employment, as his employer might treat
him differently after learning about his medical issues.  This is because the
plaintiff works in employment that involves some physical stress on his body.

[3]            
The Third Party, the Insurance Corporation of British Columbia, opposes
the application.

[4]            
In the recent case of J.D. v. Chandra, 2014 BCSC 466 [Chandra],
this Court granted an application to anonymize the plaintiff’s name in a
personal injury case.  However, in that case the defendant consented to the
application.  The plaintiff was a young student about to embark into the work
force, and the concern was that publishing a judgment detailing her injuries
might make employers reluctant to hire her.  As held at para. 7, there was
a real possibility that her future employability could be adversely affected by
publication of her name in these reasons beyond that which will be compensated
by the result.

[5]            
Thus the facts in Chandra were based on a particular
vulnerability of the plaintiff, who had yet to enter the work force and the
order had the consent of the opposing party based on these same reasons.

[6]            
The facts of the present case are materially different than in Chandra. 
In the present case, the plaintiff has been employed in his present job since
2011.  His evidence is that he is presently able to perform his job, albeit
with pain.  His job is unionized, and so he has some safeguards if the employer
treats him unfairly.

[7]            
Counsel for the plaintiff argues that the cross-examination of the
plaintiff unnecessarily threatened him by raising the prospect he could be put
at risk of losing his present employment or being sanctioned in it.  Any such
risk, however, was equally created by the position advanced by counsel for the
plaintiff that there are grounds for finding that the plaintiff should not be
doing his job at present, and therefore basing loss of earning capacity on an
immediate switch to a lower paying job that involves less physical stress on
his body.  I note that the Third Party opposes any loss of earning capacity
award and so certainly does not suggest that the plaintiff is not capable of
performing his job at present.  Further, as mentioned, the plaintiff’s own
evidence is that he has been performing his job properly to date.

[8]            
According to the Supreme Court of Canada in Canadian Broadcasting
Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 at para. 22:

The importance of ensuring that
justice be done openly … has now become “one of the hallmarks of a democratic
society”; see Re Southam Inc. and The Queen (No.1) (1983), 41 O.R. (2d)
113 (C.A.), at p. 119.  The open court principle, seen as “the very soul
of justice” and the “security of securities”, acts as a guarantee that justice
is administered in a non-arbitrary manner, according to the rule of law.  In Attorney
General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, openness was held
to be the rule, covertness the exception, thereby fostering public confidence
in the integrity of the court system and understanding of the administration of
justice.

[9]            
The pronouncements in favour of the open court principle, and against
anonymization except in rare cases, are numerous.  In (Re) Vancouver Sun,
2004 SCC 43 at para. 23 the Supreme Court of Canada held “the ‘open court
principle’ is a hallmark of a democratic society and applies to all judicial
proceedings”, as also held in Edmonton Journal v. Alberta (Attorney General),
[1989] 2 S.C.R. 1326 at 1361.

[10]        
The open court principle offers a strong presumption against anonymizing
a judgment.

[11]        
The statements of Madam Justice Dardi in X. v. Y., 2011 BCSC 943  at
paras. 17-19 are also helpful:

The curtailment of public accessibility to judicial
proceedings is justified only where social values of a superordinate importance
require protection: MacIntyre at 186-187.  The common law test for a
publication ban, involving twin requirements of necessity and proportionality,
was articulated by the Supreme Court of Canada in Dagenais v. Canadian
Broadcasting Corp., [1994] 3 S.C.R. 835, and then reformulated in R. v.
Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 at para. 32.

In Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R.
332, the Court held that although formulated in the context of publication
bans, the Dagenais/Mentuck framework should be applied to all
discretionary judicial orders that limit the principle of openness.  Hence,
these principles guide the court’s exercise of discretion in making anonymity
orders and sealing orders as well as publication bans.

A.B. v. C.D., 2010 BCSC 1530, is an example of a
recent civil case in which the court ordered a publication ban.  Although the
case involved a sexual assault by a teacher and, therefore, the factors which
informed the analysis were somewhat different than in this case, the court
provides a helpful formulation of the Dagenais/Mentuck test at para. 63:

[63]      In my view, the Dagenais test, as modified
by Mentuck, can be further modified to reflect the competing interests
in the case at bar as follows:

A discretionary publication ban to protect identification of
a person or entity should only be ordered when

(a)        such an order is necessary in order to prevent a
serious invasion of privacy 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.

[12]        
The law is clear that anonymizing a judgment by substituting initials
for a litigant’s name should only occur in rare circumstances, such as where it
is necessary to protect a vulnerable litigant or a vulnerable person who can be
identified through the litigant.

[13]        
I find that there is nothing exceptional about this case which requires
a publication ban on the name of the plaintiff.  There is no more of an
invasion of privacy in this case than in an ordinary case and the plaintiff is
not a vulnerable person.

[14]        
I also note that if publication bans were a matter of course in personal
injury trials this could negatively impact the administration of justice. 
There are sound reasons for publishing the names of litigants.  One benefit of
the open court principle is that it brings home to a person who testifies the
importance of telling the truth and increases the potential consequences of
failing to do so.  This is one reason the Third Party’s opposition to such an
application is an important factor to weigh.

[15]        
The application to anonymize the judgment is therefore refused.

“S.A. Griffin, J.”
The Honourable Madam Justice Susan A. Griffin