Canada: Becoming Jane or John Doe: Can Civil Litigants Use a Pseudonym to Protect Their Privacy?

Originally published in Canadian Privacy Law Review, Volume 7, Number 7

Whether litigants are suing or being sued, one of the first sacrifices they make is their privacy regarding the matters in dispute. The resulting public revelations can sometimes lead to embarrassment, or worse, which has been described as "an unavoidable consequence of an open justice system."1

Today's increased recognition of the importance of privacy interests may seem at odds with the limited recognition they receive in civil litigation. Litigants often ask, "Can I shield my identity from the public?" Usually, the answer to this question is no. The importance of an open court system is normally the overarching public policy imperative. The open court principle has been described as "the very soul of justice."2

Court processes exist, however, through which litigants can ask that their privacy be recognized. One such measure is to allow them to protect their privacy by using a pseudonym or initials instead of their legal name. Doing so is a protection against the public, not the opposite party. An examination of the developed law reveals that the use of initials or a pseudonym is not driven by the interests of protecting privacy per se, though there are suggestions that it may yet develop in that direction. This article explores and enumerates the limited circumstances in which a party can proceed using his or her initials, or become, for the purposes of the record, Jane or John Doe. For convenience, in this article we refer to both initials and Jane or John Doe as the use of "pseudonyms."

The Principle of Openness

A would-be Jane or John Doe must contend first with the strong presumption in favour of the "openness" of the courts, particularly in respect of judicial acts. In MacIntyre v. Nova Scotia (Attorney General),3 Justice Dickson (as he then was) quoted Jeremy Bentham's rationale for this presumption:

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.4

The presumption of openness is usually sufficient to dispose of the argument that the privacy rights of a party should be protected. As Dickson J. held,

Many times it has been urged that the 'privacy' of litigants requires that the public be excluded from court proceedings. It is now well-established, however, that covertness is the exception and openness the rule. Public confidence in the integrity in the court system and understanding of the administration of justice are thereby fostered.5

MacIntyre was a case about public access to executed search warrants and related informations, but the reasons advanced for the presumption of openness also apply in the civil context.6 In civil litigation, judges determine the rights of parties, and these judicial determinations are not truly open to public scrutiny if the identity of one of the parties is a secret. In consequence, subrule 14.06(1) of Ontario's Rules of Civil Procedure7 requires that the title of every court proceeding set out the names of all parties.

Openness is not merely a matter of guarding against "judicial injustice," as Bentham called it. Courts have observed that the use of pseudonyms gives rise to other concerns:

It is easier for false allegations against innocent defendants to be maintained if plaintiffs are not exposed to the full glare of public scrutiny. And an action involving an unnamed plaintiff will minimize the opportunity for third parties to come forward with knowledge of the case. This latter concern could work to the benefit or the detriment of either side in the case.8

The issue of third parties coming forward is not a concern about moral hazards affecting the judge or a party; rather, it is a concern about an impairment of the court's ability to discover the truth.

Each of these considerations informs the strong presumption in favour of openness and militates against the use of pseudonyms in civil litigation.

Nor is consent of the parties alone sufficient to obtain an order. Often, all parties would be happy to litigate in private. The court, however, must consider the interests of the public.9

The Exceptions

While Rule 14 requires that the parties to a civil action be named, subrule 2.03 provides that the court "may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time." This rule provides a starting point to seek an order to use a pseudonym, but the onus rests with the party seeking to do so.10

The presumption in favour of openness and against the use of pseudonyms can be overcome in some circumstances, including to prevent harm and to protect the innocent. The use of pseudonyms may also be allowed to protect confidentiality when the very purpose of the action is to protect confidentiality. Finally, there may be some scope for new exceptions, such as the use of pseudonyms in the context of anonymous Internet activity. Each of these circumstances is discussed below.

(i) The Prevention of Harm and the Protection of the Innocent

A party will be permitted to use a pseudonym if it is established that he or she would otherwise likely suffer irreparable harm. The court has employed a three-part test, based on the test for an interlocutory injunction:11

  1. whether there is a serious issue to be tried;
  2. the likelihood of irreparable harm; and,
  3. the balance of convenience.12

The heart of this test is the inquiry into the likelihood of irreparable harm, and the evidence before the court on the motion will be important. This is illustrated by two decisions of the Ontario Superior Court of Justice involving Dr. Stubbs, a plastic surgeon who performed penile enhancement surgery. Two of Dr. Stubbs' patients were dissatisfied with the results of their operations. Each sought to sue using a pseudonym. They also sought orders banning the publication of their names and any identifying information.13

In the first Stubbs action, the motion was supported by the affidavit of a treating psychiatrist.14 Because the psychiatrist concluded that the disclosure of the plaintiff's identity could be very traumatic for the plaintiff, the Court concluded that the second stage of the test had been met and, ultimately, granted the order.

In the second Stubbs action, the plaintiff provided no evidence of irreparable harm other than his own stated concern that he would be embarrassed.15 The Court concluded that this evidence was insufficient, since "the subjective feelings of the plaintiff cannot be the test for giving an anonymity order."16 An approach based on subjective feelings, the Court held, would "open the floodgates for preliminary motions for anonymity orders."17

The Stubbs decisions highlight the importance of proving the likelihood of irreparable harm. This is true not only regarding the unusual facts of the Stubbs cases, but also regarding the far more common circumstance of civil sexual assault claims. In the recent case of Jane Doe v. D'Amelio,18 Justice Nolan of the Ontario Superior Court of Justice held that, in the absence of medical or psychological evidence, the plaintiff's own affidavit evidence of irreparable harm was an insufficient basis for granting the anonymity order sought.19 Overcoming the presumption of openness "requires clear and compelling evidence."20

A similar conclusion was reached in John Doe v. B(S),21 in which the Supreme Court of Newfoundland and Labrador refused an order permitting a plaintiff to commence an action using a pseudonym. The intended defendant was the plaintiff's employer, who was later convicted of sexually abusing the plaintiff. However, no evidence of harm was provided on the motion. The Court observed that the embarrassment caused by the publicity surrounding the evidence that is likely to be submitted is not sufficient reason to make the order.22

The third stage of the test involves determining the balance of convenience. The two Stubbs decisions differ on the test to be applied. In the first Stubbs case, the Court held that the balance of convenience is not between the parties but "between the plaintiff and the public."23 In the second Stubbs case, the Court held that this stage of the test also requires an assessment of the balance of convenience between the plaintiff and the defendant.24 In that case, Justice Cumming found that

[a]s a general proposition, it is probable that witnesses are more likely to be truthful in their testimony if they know it is subject to being scrutinized by an audience within the context of their identity being known.25

The protection of plaintiffs is also important in determining the balance of convenience. In J. Doe v. TBH, both the plaintiff, a victim of sexual assault, and the defendant, a publicly funded agency, sought permission to use pseudonyms. The Court held that victims of sexual assault were innocent victims who could be protected at the cost of public accessibility of the court system.26 In making this finding the Court relied on MacIntyre, in which protection of the innocent was identified as a social value of superordinate importance.27 It is unclear whether J. Doe v. TBH, which was decided before Jane Doe v. D'Amelio and both Stubbs cases, would be decided the same way today, absent evidence of harm. In J. Doe v. TBH, the defendant was unsuccessful. Even though the agency was a charitable organization doing "very good work and caught up in a situation not of their own making," this social value was not of sufficient importance to justify making the order.28

The key to obtaining an order on this basis appears to be good evidence of irreparable harm — more than mere embarrassment. The court will balance that harm against the other interests at stake. Privacy is not a focal point of the test.

(ii) Protection of Confidentiality

A court may also permit the use of a pseudonym where disclosure of the plaintiff's name would effectively destroy the right to the confidentiality that the plaintiff seeks to protect through an intended action. Put another way, confidentiality will be protected where "confidentiality is precisely what is at stake" in the action.29

This principle was articulated in A.(J.) v. Canada Life Assurance Co.,30 which involved plaintiffs suing an insurer that had allegedly revealed the HIV status of the plaintiffs without their consent. The plaintiffs were allowed to proceed with the action under pseudonyms to ensure that justice was done.31

This exception appears to be grounded in the principle that there is no right without a corresponding remedy. If the right to keep information confidential could be vindicated only by disclosing the confidential information through court proceedings, then the right itself would be useless.

(iii) Anonymous Internet Activity

Another (and as yet only potential) basis for proceeding under a pseudonym involves disclosure orders in cases of anonymous Internet activity.

The Federal Court of Appeal raised this potential basis for an anonymity order in BMG Canada Inc. v. John Doe.32 In BMG, Canadian music producers wished to bring an action against certain persons who they had reason to believe were infringing copyright through "music sharing" on the Internet. The producers did not know the identities of the prospective defendants, who used pseudonyms for their online activities. To identify the prospective defendants and serve them with a claim, the producers sought an order for third party discovery against the prospective defendants' Internet service providers ("ISPs").

Citing privacy concerns and the Personal Information Protection and Electronic Documents Act ("PIPEDA"),33 the ISPs refused to provide the names of their clients without a court order. The Federal Court of Appeal held that, as part of the test for granting an order, "the public interest in favour of disclosure must outweigh the legitimate privacy concerns of the person sought to be identified" and that, in the circumstances of the case, the balance favoured disclosure of the identity of the prospective defendants.34 The Court then made the following observation:

[I]t must be said that where there exists evidence of copyright infringement, privacy concerns may be met if the court orders that the user only be identified by initials, or makes a confidentiality order.35

Despite this reference to the possibility of an order permitting the use of a pseudonym, seeking that order has not been common practice in the cases that follow BMG, and there is no reason to assume that the order would be automatic. Yet it is interesting to see that privacy interests in anonymous music sharing may be worthy of that protection. If that is so, a more compelling case would be available with respect to anonymous Internet speech, which is founded on the Charter right of freedom of expression.

No case appears to have yet raised Charter rights in the context of a litigant seeking to use a pseudonym in civil litigation. It has, however, long been recognized in the United States that anonymity is a component of free speech. This principle was developed before the Internet and recognizes that from time to time throughout history, people have been able to criticize oppressive practices and laws either anonymously or not at all. The United States Supreme Court has said, "It is plain that anonymity has sometimes been assumed for the most constructive purposes."36 Although there is not the same long jurisprudential history in Canada, the relationship between freedom of expression and anonymity was considered in the Elections Canada v. National Citizen's Coalition case,37 in which the Ontario Court of Justice found that the removal of individuals' right to remain anonymous constituted an unjustified breach of the Charter right to freedom of expression.

It must be recognized, however, that the principle of open courts is also tied to the Charter right of freedom of expression. As the Supreme Court of Canada stated in CBC v. New Brunswick, "openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings."38

When the activity at issue is anonymous Internet activity, it remains to be seen the extent to which a case will be made for the use of pseudonyms. Usually, a party seeks to use a pseudonym to obtain protection from the world at large, not the opposite party (who would know the identity of the party seeking a pseudonym). It is difficult to see why the world at large ought not to know that someone is music sharing. But a more compelling case could be made that anonymous speech may call for this protection, particularly where anonymity is sought out of fear of reprisal.

The Reach of the Right to Privacy

Since the MacIntyre decision of the Supreme Court of Canada, now 30 years ago, our legal system has increasingly recognized privacy. Legislative change has come through the introduction of PIPEDA and other privacy legislation in Canada. The courts have made clear that the Charter includes an expectation of privacy under both ss. 7 and 8.39 Society now demands privacy protection in many business relationships. Yet the cases about the use of pseudonyms demonstrate that the assertion of a privacy interest alone has not been enough. The countervailing public interest in an open court system is a strong one, repeatedly affirmed since MacIntyre.40

As the trend toward increased privacy protection continues, the courts may have to consider that issue directly and determine whether privacy should have greater recognition and, if so, in what circumstances.


1 B.(A.) v. Stubbs, [1999] O.J. No. 2309, 44 O.R. (3d) 391 at para. 23 [Stubbs 1999].

2 Sierra Club of Canada v. Canada (Minister of Finance), [2002] S.C.J. No. 42, [2002] 2 S.C.R. 522 at para. 52 [Sierra Club of Canada].

3 [1982] S.C.J. No. 1, [1982] 1 S.C.R. 175 [MacIntyre].

4 Ibid. at para. 53.

5 Ibid. at para. 59.

6 Ibid. at para. 62.

7 R.R.O. 1990, Reg. 194.

8 Re John Doe, [2005] N.J. No. 394, 2005 NLTD 214 at para. 17.

9 See, for example, the comments of Steele J.A. in the Manitoba Court of Appeal in Jane Doe v. Manitoba, [2005] M.J. No. 151, 2005 MBCA 57.

10 Jane Doe v. D'Amelio, [2009] O.J. No. 4042, 98 O.R. (3d) 387 at para. 10.

11 T.(S.) v. Stubbs, [1998] O.J. No. 1294, 38 O.R. (3d) 788 at para. 29 [Stubbs 1998]; Stubbs 1999, supra note 1; Jane Doe v. D'Amelio, supra note 10.

12 Supra note 10 at para. 13.

13 Stubbs 1998 ibid. at para. 1; Stubbs 1999 supra note 1 at para. 1.

14 Ibid. at para. 22.

15 Supra note 1 at para. 26.

16 Ibid. at para. 27.

17 Ibid.

18 Supra note 10.

19 Ibid. at paras. 20, 22.

20 Ibid. at para. 20.

21 Supra note 8.

22 Ibid. at para. 6.

23 Supra note 11 at para. 55.

24 Supra note 1 at para. 35.

25 Ibid. at para. 36.

26 [1996] O.J. No. 839, 45 C.P.C. (3d) 1 at para. 5.

27 Ibid. at para. 4.

28 Ibid. at para. 9.

29 A.(J.) v. Canada Life Assurance Co., 70 O.R. (2d) 27 at para. 21 (H.C.J.).

30 Ibid.

31 Ibid.

32 [2005] F.C.J. No. 858, 2005 FCA 193.

33 S.C. 2000, c. 5.

34 Supra note 32 at paras. 36, 42.

35 Ibid. at para. 45.

36 McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960).

37 Canada (Elections Canada) v. National Citizen's Coalition, [2003] O.J. No. 3420 at paras. 18, 20-21, 34, 36-38, s. 1 analysis [2003] O.J. No. 3939 at paras. 29-30, 32 (Ont. C.J.).

38 [1993] 3 S.C.R. 480 at para. 23.

39 R. v. Dyment, [1988] 2 S.C.R. 417 at 427; Cheskes v. A.G. Ont., [2007] O.J. No. 3515 at para. 112 (Ont. S.C.J.).

40 See, for example, Sierra Club of Canada, supra note 2.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions