CanLII and Parties’ Names

Here’s another reason why cases may get missed, even by better researchers.

CanLII’s privacy policy  para. 14 states

14. In order to limit prejudice to individuals that could result from free publication of documents containing personal information, CanLII is actively involved in advancing standards and policies that promote optimal protection of the privacy of people who appear before the courts.

It seems that CanLII, under this policy, is changing the name of the plaintiff in sexual assault cases to initials even though the plaintiff’s full name is in the title of proceedings in the pleadings and the reasons. This includes changing the name to initials in the body of the case. 

The result is that the case will have a different official name, not just a different neutral citation. An older example is the case you’ll find at 59 OR (3d) 384. Compare that to the version at 2002 CanLII 41072. Noting up the case, for what it’s worth, takes you to later cases where the full (official) name is used.

On at least one occasion that I know of – in an important case – the switch is the other way. CanLII has at least one full surname in the citation; however, the ORs have complete initials: J. M. v. Bradley, 2004 CanLII 8541 (ON C.A.) against JM v WB 71 OR (3d) 171. 

 There are more recent examples.

I’ve asked CanLII about this and whether the practice extends to other situations where there’s no court order banning the identification of the parties.

Addendum 

I should have mentioned that clauses 12 and 13 of that CanLII policy state that CanLII publishes judgments as received “including the personal information they may contain” except where there’s a publication ban. Obviously, not quite.

Addendum 2 (Dec 19/07)

In the words of a lamented version of SNL, General Franco is still dead.

Or, CanLII hasn’t yet deigned to reply to my question. I’m sure it’s just a matter of elf-overwork and the holiday season what with all the presents that Santa has to deliver. …. Oh, right. Wrong company. Sorry about that. 

Patience was never one of my virtues. CanLII has replied with a good explanation.

[December 19/07] 

Mr. Cheifetz,

The short answer to your question is: No. We don’t have a policy to
change names when we know that there is no court order to this effect.
However, the problem we are facing is that such orders are routinely
made for sexual crimes in criminal proceedings and it is not possible
to make sure that no order was made in each particular case.

CanLII’s policy is to publish decisions as they are sent by courts,
except where a legal restriction on publication applies. When there are
allegations of sexual assault in a case, there is always a risk that an
order not to disclose the complainant’s identity has been made in
criminal proceedings – this order is mandatory upon demand by the Crown,
the complainant or a minor witness (see 486.4 of the Criminal Code).
This order is made in almost all sexual assault criminal cases and
failing to comply with it, even by publishing a tort civil case, is a
criminal offence.

When we can’t determine that the order was not made in a particular
situation involving allegations of a sexual crime, we have to err on the
side of caution and anonymize the complainant. The situation is similar
for allegations of a youth criminal record or of children protection
proceedings, in most provinces and territories. For orders that are
discretionary according to applicable statutes, we would redact the
decision as needed only if the order is mentioned in the decision.

In order to generally improve case law publisher’s ability to ascertain
that a publication ban order actually applies to a case, LexUM and other
publishers are involved in an initiative, through the Canadian Citation
Committee and the Canadian Judicial Council, to implement a standard
that courts can use to alert publishers about applicable bans on
publication.

That said, I will look into the recent ONCA examples you referred to
since we usually avoid redacting the court’s version of the decision if
it is posted on their website. These decisions might have been
erroneously redacted.

Finally, we are aware that there is a wealth of inconsistencies in the
way cases are named by publishers, especially online. This is an old
problem. This publication bans compliance issue only adds more
complexity to it, especially since different publishers may have
different policies in this regard. This is why we are advocating that
the neutral citation be always used when citing a decision.

Yours truly,

Frédéric Pelletier
Legal Counsel and Policy advisor, LexUM
for CanLII

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Comments

  1. Thanks for the heads up. BAILII has this to say re: privacy.

    B1. Some BAILII databases contain personal information, including the decisions of Courts and Tribunals, and the reports of Royal Commissions. BAILII publishes these databases with the consent of the public bodies concerned. It is the responsibility of the public bodies which provide these databases to BAILII to determine, subject to the requirements of the laws under which they operate, the appropriate balance between the privacy interests of individuals and the public interests in dissemination of the information. In particular, if personal data is to be anonymised before publication, this is done by the public body concerned. BAILII does not and can not censor part or all of the information provided by these public bodies for publication.

  2. Thanks for mentioning that. CanLII purports to subscribe to that approach, too: see clauses 12 and 13 of the link I’ve posted. In practice, it isn’t. I’ve updated my post.

  3. Professor Swan once wrote a provocative op-ed in the legal rags arguing that all cases should be anonymized, and that what litigants sought was their dispute resolved, not their intimate stories revealed with full identification for the titillation of law students – and now web surfers. He might still have the article.

  4. Another “glitch”. The CanLII algorithms may not pick up cases listed only in footnotes – this applies both to the “noteup” and internal “reflex” list of cases in the reasons. I know of one recent example where a case listed in the footnotes is not picked up in the reflex list and noting up the footnoted case doesn’t get you to the later case. Given that the later case is an appellate decision seemingly doubting the correctness of a comment made in the earlier appellate case released just a few months before …