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CIVIL PROCEDURE - Trials - Publication bans and confidentiality orders

Monday, December 14, 2020 @ 9:15 AM  

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Appeal by the defendant U.K. from a decision granting the respondent’s motion for a confidentiality order permitting her to substitute the pseudonym LA in place of her legal name. The respondent sued the appellant for vicarious liability for alleged sexual assault committed by members of the U.K. Royal Navy hockey team against the respondent. A publication ban was issued in the criminal proceedings that prohibited the publication of any information that would disclose the respondent’s identity. The appellant commenced the civil proceeding without the use of a pseudonym. The motion judge concluded that publicly linking the respondent to the sexual assault allegations which were common to both proceedings would lead to harm and retraumatization. She concluded the confidentiality order was necessary to protect her from this harm because there were no reasonable alternative measures to prevent this risk. The appellant argued the hearing judge misapplied the legal test and principles governing the granting of common law publication bans, including the confidentiality order. 

HELD: Appeal allowed. The publication ban under the Criminal Code prohibited disclosure of information that could identify the respondent as the complainant in the criminal proceeding. This was the same information sought to be protected by the confidentiality order, and the motion judge made an error in principle by not recognizing this. The necessity for the confidentiality order was not established by the respondent because of the protection afforded by the existing publication ban. At a minimum, the criminal publication ban was a reasonable alternative measure to prevent public disclosure of her identity.

United Kingdom of Great Britain and Northern Ireland (Attorney General) v. L.A., [2020] N.S.J. No. 399, Nova Scotia Court of Appeal, M.J. Wood C.J.N.S. and D.R. Beveridge and C.A. Bourgeois JJ.A., November 17, 2020. Digest No. TLD-December142020001