July 5, 2018
John Doe v Jane Roe 2018 NSSC 174

The applicants were seeking an order of confidentiality. Specifically the applicants indicated that they are anticipating that actions may soon be filed naming one or both of them as defendants, with a person they identify as Jane Roe as the plaintiff.

Their application seeks for the court to order in advance of that filing that the plaintiff use pseudonyms when referring to them in pleadings before the court and in documents filed with the court. That application is made pursuant to Rule 85 of the Rules of Court.

The applicants also seek an order that if the plaintiff speaks to the media about this particular matter, the plaintiff would not name the applicants/defendants but would also use pseudonyms in those interviews.

The media received formal notice that these applications were being made.

Rule 85 addresses the issue of confidentiality in court matters and, within that rule, talks about the use of pseudonyms, specifically at Rule 85.04(2)(d). An application for such an order refers to the open court principle.

The onus is on an applicant when such an applicant seeks an order that limits the open court principle in any way to show that the principle should be somehow limited in their particular case. The test in such applications is the Dagenais/Mentuck test.

In the final analysis, the applicants should know that I have heard and fully understand their concerns. However, I do not find that these concerns trump the greater principle here that is to be protected, that is to say the open court principle. With what is before me within this particular application, I am not persuaded that in this case, at this time, that the disclosure of the names of the defendants in the potential action of Jane Roe would represent a risk to an important public interest.

In my view, the applicants, therefore, have not met the first branch of the Dagenais/Mentuck test. Having concluded that, I see no need to consider the second branch. I have concluded that the confidentiality order that is sought by the applicants should not issue at this time.