One of the defining features of the Canadian justice system is the open court principle. Court proceedings are presumed to be open to the public, reflecting the principle that justice should not only be done, but should be seen to be done. As the Federal Court recently noted, courts “do their business in public.”
That presumption, however, is not absolute. In limited circumstances, the Federal Court will order that a party’s identity be anonymized.
The Starting Point: The Open Court Principle
The Supreme Court of Canada reaffirmed in Sherman Estate v. Donovan, 2021 SCC 25, that openness is the default position in Canadian courts. Anyone seeking to restrict public access to court proceedings bears a significant burden.
To obtain an anonymity order (or another order limiting public access), an applicant must establish three things:
- Court openness poses a serious risk to an important public interest;
- The order is necessary because no reasonable alternative would adequately protect that interest; and
- The benefits of the order outweigh its negative effects on the open court principle.
This is a demanding test. Mere embarrassment or inconvenience will not suffice.
What Qualifies as an “Important Public Interest”?
The Supreme Court identified several interests that may justify restricting public access.
Physical Safety
If identifying a litigant would create a genuine risk to their physical safety—or the safety of others—the Court may grant an anonymity order. The issue is not simply whether some risk exists, but whether the risk is sufficiently serious to overcome the strong presumption of openness.
Privacy and Human Dignity
The Court also recognized that some invasions of privacy can be so severe that they engage an important public interest. Where disclosure would significantly undermine a person’s dignity, an anonymity order may be appropriate.
How Does This Apply in Immigration Cases?
Issues involving safety and privacy arise frequently in immigration and refugee litigation.
Applicants may fear persecution abroad, retaliation from criminal organizations, harm to family members, or the disclosure of highly personal information. As a result, the Federal Court has recognized that immigration cases are among the types of proceedings where anonymity orders may be justified.
Importantly, however, anonymity is not automatic.
Each case must be assessed on its own facts. The applicant must still satisfy the Sherman test by demonstrating that anonymization is necessary to protect an important public interest.
Why Anonymity Orders Are Often Easier to Justify Than Other Confidentiality Orders
Although anonymity orders restrict the open court principle, they do so in a relatively modest way, as per Adeleye v Canada (Citizenship and Immigration), 2020 FC 68.
Unlike sealing orders, which prevent documents from being publicly available, an anonymity order typically allows the proceedings, evidence, and reasons for judgment to remain public. Only the litigant’s identity is removed from publicly available court documents.
Because anonymization is a comparatively limited restriction on openness, the Federal Court has acknowledged that it may be appropriate in cases where more extensive confidentiality orders would not be justified.
The Governing Rules
Anonymity orders are a form of confidentiality order.
Rule 151 of the Federal Courts Rules provides that the Court may grant confidentiality orders only if it is satisfied that the material should remain confidential despite the public interest in open and accessible court proceedings.
For immigration matters, Rule 8.1 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules specifically governs requests for anonymity.
A party may request that publicly available court documents be amended or redacted to remove identifying information. The Court may grant the request only after considering the public interest in open court proceedings and determining that the party’s identity should be made anonymous.
Key Takeaways
The Federal Court will not grant anonymity simply because a litigant prefers privacy. The open court principle remains the starting point.
However, where public identification would create a serious risk to an important public interest—particularly concerns relating to physical safety or significant invasions of privacy and dignity—the Court has the discretion to anonymize a party’s identity.
In immigration litigation, where applicants often face unique risks arising from persecution, political violence, or sensitive personal circumstances, anonymity orders remain an important procedural safeguard. They are not routine, but in the appropriate case they provide a narrowly tailored means of balancing the public’s right to open courts with the need to protect individuals from serious harm.