The Anonymous Representative
The open-court principle requires accusers to identify themselves, but new issues in data privacy and health care are challenging the courts to consider broadening the use of anonymity in class actions.
IN NEARLY EVERY CONCEIVABLE circumstance, courts demand plaintiffs disclose their identities if not publicly then at least to the defendant — but this is not always the case. The permissibility of anonymous representation in class actions has evolved over the past decade.
One of these rare instances of anonymity occurred in 2008, when the Court of Queen’s Bench of Manitoba gave permission to Jane Doe 1 and Jane Doe 2 to initiate a class action against the government of Manitoba regarding the funding of abortion services in the province. Jane Doe 1 and Jane Doe 2 v. Manitoba, 2008 MBQB 217, allowed the representative plaintiffs to be anonymous in their ongoing efforts to obtain a declaration from the Manitoba government “that the funding regime under the Health Services Insurance Act for therapeutic abortion services violated their rights under the Charter.” They also sought recovery of special, general, aggravated and punitive damages.
The plaintiffs had first filed a class action in 2001 after they had paid for abortions at a private clinic in Manitoba out of their own pockets because they were unwilling to wait between four and eight weeks for a government-funded hospital abortion. Their purpose was to strike down as unconstitutional a Manitoba law that denied funding for abortions conducted at private clinics. (They were ultimately successful; in 2005, Manitoba allowed private abortion clinics to receive provincial funding.)
In achieving certification for their initial 2001 suit, the representative plaintiffs also won the right to remain unnamed, which is permitted under the class action notification rules in Manitoba, unlike in the rest of the country (with a few exceptions). That consideration was extended to them once again in the 2008 action.
“In the circumstances of this case, I find that the failure to identify the two plaintiffs is not important because the court has approved the use of pseudonyms by the plaintiffs, their identities are known to the Government, and they have been examined by counsel for the Government,” Justice Schulman wrote in allowing the class action to proceed to the certification stage.
The overwhelming norm in Canadian class action lawsuits is that representative plaintiffs must be identified by name and address, says Monique Jilesen, a partner in the Toronto office of Lenczner Slaght Royce Smith Griffin LLP. The practice of identifying representative plaintiffs emerges out of the open court principle of Canadian common law, which requires court proceedings to be accessible to the public and the media unless compelling conditions exist to hold them in camera. “Another reason,” says Jilesen, “is that if the representative plaintiff is anonymous, other members might ask how they would be able to know if [that person] can adequately represent the rest of the class.”
Although Jilesen says she is unaware of any Ontario class action suits in which the plaintiff has been allowed anonymity, courts may soon be faced with such demands. “This is a hot issue,” says Chris Naudie, co-chair of class actions at Osler, Hoskin & Harcourt LLP. “This is an emerging issue that coincides with the rise of what I call privacy and data-breach class action suits. It highlights a tension in the structure of our class-action proceedings legislation.”
The tension, he says, arises when, in certain types of cases, “there’s a claim of harm related to the disclosure of the identity of the class member and intimate details relating to that class member’s life.” The types of cases where anonymity (or the use of a pseudonym) might come into play, says Yves Martineau, a partner and class-action litigator in the Montréal office of Stikeman Elliott LLP, are fairly obvious.
“Maybe involving victims of sexual assault, mental-health issues, pharmaceuticals, those kinds of matters. I would certainly support that, but they would be the exceptions and not the rules. I can’t see it in consumer class actions or a product-defect case. I would see no reason to do that.”
One of the first cases, launched in 2006, to address the issue of anonymous representative plaintiffs, says Naudie, did not resolve favourably for the plaintiffs. In T.L. v. Alberta, 2006 ABQB 104, which dealt with claims regarding the abuse of minors under the care of child welfare authorities in Alberta, the court held that, under the province’s Class Proceedings Act, the representative plaintiff had to be identified “unless the court orders otherwise.”
Another notable example was the use of pseudonyms in John Doe and Suzie Jones v. Canada. This matter concerned what Health Canada referred to as an “administrative error,” a reference to a 2013 mailing from the department to 40,000 medical marijuana users across Canada in envelopes that showed the patients’ names and referred to the Medical Marihuana Program. The plaintiffs claimed their privacy and safety had been compromised.
In 2014, federal court judge Michael Phelan ruled against the government, which had wanted the plaintiffs to use their real names in court. Referring to the plaintiffs as “patients” and not simply “users,” he noted that to identify them would expose their medical and health information to others. “Disclosing their identities discloses that a course of treatment has been prescribed for them by a medical doctor, and that they suffer from serious health conditions and symptoms,” he wrote.
“Identifying the Plaintiffs by name or information that discloses their personal identity also discloses that they have or are likely to have medical marihuana in their homes — something that Health Canada itself saw as a serious safety and security risk.”
Two years later, however, a compromise was reached regarding the anonymity issue. The Federal Court of Appeal accepted the defendant’s contention that several individuals on the plaintiffs’ side were willing to publicly identify themselves, so the matter could proceed with a named representative plaintiff. “The Court noted that Justice Phelan left open the possibility of going back to court ‘if ever the identification of a class representative proves to be impossible,’” Naudie wrote in a blog co-authored by his colleague, Sarah McLeod. “This case introduced a requirement of necessity into the consideration of whether a class action can proceed with an anonymous representative plaintiff. This decision suggests that, if necessary, a class action can proceed without naming and identifying a representative plaintiff.”
A twist to the anonymity question arose in a class action in 2010 between Tim Hortons and some franchisees, says Scott Kugler, leader of the class actions group at Gowling WLG (Canada) LLP. “Some franchisees wanted to support the [named] plaintiff but they wanted to do so anonymously because they feared backlash [from the defendant].” They weren’t permitted, but again, the issue of anonymity came into play. Although Kugler, like other class-action lawyers, can imagine circumstances in which anonymity might be the right decision, he also believes strongly that a defendant has “a right to know who’s suing them. Public confidence in our court system comes from the public’s ability to see what’s actually going on. It creates a real sense of transparency.”
In Québec, anonymous representative plaintiffs have occasionally been allowed, says Martineau, but “the use of pseudonyms is relatively new. Like the rest of Canada, the use of anonymity is seen as going against the open court principle.” Martineau offers one case that may serve as apossible exception. In June 2006, a male identified only as Sebastian (a pseudonym) filed a motion to have a class action certified against the English Montreal School Board and a former teacher named Richard Spence for having sexually assaulted students from the late 1960s until the early 1980s.
Spence, who had taught biology, had recently pled guilty to six counts of indecent assault and one count of gross indecency. He was sentenced to two and a half years in prison in 2007 and was released in 2009. In October 2013, eight former students were awarded a total of $5 million compensation by the Québec Superior Court. “The use of anonymity is not commonplace,” says Martineau, “nor should it be. But it seems right in cases like this.”
At the opposite end of the spectrum is the Ashley Madison class action. In 2015, hackers posted personal details about some 37 million users of the site that connects married men and women looking for an affair.
A class action initiated the following year attempted to keep the identity of the representative plaintiffs anonymous. Judge John A. Ross, of a district court in Missouri, did not agree. He conceded that it might be embarrassing for a plaintiff to be publicly identified but ruled that the plaintiffs are “class representatives” and may need to testify or offer evidence, unlike “class members” who do not need participate as actively and can remain anonymous. A US$11.2-million settlement was reached in 2017.
It’s unlikely that there will be a spate of class actions in Canada in which anonymity or the use of a pseudonym is used in the near future. But with data breaches virtually commonplace, and cases involving victims of sexual violence continuing to emerge, it also seems that strong arguments can be made to permit anonymity in special circumstances.
“Ultimately, the courts are going to have to resolve this issue,” says Naudie. “As defence counsel, my view is that absent some extremely exceptional circumstances the identity of the plaintiff representative should be disclosed. But there’s no doubt arguments can be made for anonymity when those circumstances arise.”