Can you bring a class action without publicly identifying a representative plaintiff? In the past few years, class action claimants in Canada and the U.S. have attempted to proceed with proposed representative plaintiffs who wish to remain anonymous. In certain circumstances, particularly those involving allegations of breach of privacy, the proposed representative plaintiff often claims that requiring them to publicize their identity would only exacerbate the alleged injury or harm.

Although using a pseudonym or initials for plaintiffs in regular litigation is fairly common, the courts have generally discouraged the use of anonymous representative plaintiffs in class actions since the role of a representative plaintiff in a class action is to “fairly and adequately represent the interests of the class.” The Supreme Court of Canada in Western Canadian Shopping Centres Inc. v. Dutton has said that representative plaintiffs have the responsibility to vigorously represent the interests of class members and the interests of class members should not be vulnerable to the deficiencies in the ability of the representative plaintiff to represent them. Certain courts have held that the anonymity of class representatives conflicts with these responsibilities.

The problem of anonymous representative plaintiffs

Does the Class Proceedings Act require identification of representative plaintiffs?

One of the first cases to address the issue of anonymous representative plaintiffs was the Alberta Court of Queen’s Bench in T.L. v. Alberta (Director of Child Welfare) (“T.L.”). In T.L., the Court reviewed section 20(6)(a) of the Alberta Class Proceedings Act, which states that the notice of certification given to the class must include the name and address of the representative plaintiff “[u]nless the Court orders otherwise.” The Alberta Court held that since the legislation requires that the name and address of the representative plaintiff be given to the class, it would be inappropriate to allow the representative plaintiff to sue anonymously or by use of a pseudonym.

However, two years later the Manitoba Court of Queen’s Bench in Jane Doe 1 and Jane Doe 2 v. Manitoba (The Government of) declined to follow T.L. and approved the use of pseudonyms by the representative plaintiffs in a class action against the Manitoba government. The anonymous representative plaintiffs commenced a class proceeding against the defendant for a declaration that the funding regime for abortion services violated their rights under the Charter. During the certification hearing, the defendants challenged the use of representative plaintiffs appearing under pseudonyms. The Court addressed this point as follows:

[…] 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. In addition, there has been a preliminary assessment of the case and a determination that there are genuine issues for trial. I find that there is no substance to the concern that has been expressed and that the plaintiffs have substantially complied with the adequate representation requirement as expressed in Dutton. The case of L. (T.) is quite different from the instant case because the defendant there did not know the identity of its accuser. The Alberta legislation made express provision, in the notice to the class, of the name and address of the proposed representative plaintiffs. There is no such requirement in Manitoba either under the law as it stood prior to the enactment of our legislation, under our statute or under our rules.

Instead of focusing on the responsibilities of a representative plaintiff or their duties to class members, the Manitoba Court focused on the fact that the identities of the representative plaintiffs were known to the defendant and that the defendant was not prejudiced by failure to identify the plaintiffs. In addition, the Manitoba Court distinguished T.L. on the basis that the Alberta legislation required notice to the class of the name and address of the proposed representative plaintiff whereas the Manitoba legislation only requires the notice to include names and addresses of counsel.

Although the wording of the Manitoba Alberta legislation is slightly different, both provisions leave open the possibility for circumstances where the “the Court orders otherwise.” In addition, other jurisdictions’ class action legislation have provisions that are substantially similar to the Alberta wording, for example the Ontario Class Proceedings Act, 1992 and the Federal Courts Rules, but no other jurisdictions have held that this entirely precludes the use of anonymous representative plaintiffs. In John Doe v. Canada, despite the Federal Courts Rules having the same wording as the Alberta legislation, the Federal Court of Appeal did not address this statutory interpretation argument and instead left open the possibility that a class action could proceed with an anonymous representative plaintiff. Nevertheless, it is possible that the wording of the applicable legislation governing class actions will impact whether or not the court allows the use of an anonymous representative plaintiff.

Is there a requirement of necessity for anonymous representative plaintiffs?

In John Doe v. Canada, the representative plaintiffs were originally permitted to proceed under the pseudonyms “John Doe” and “Suzie Jones” in their class action on behalf of participants in the Marihuana Medical Access Program. During the certification motion, the defendant questioned how an anonymous representative could carry out the obligations of a class representative. The defendant suggested that there were individuals in this case who would be prepared to be publicly identified as a class representative and plaintiff’s counsel suggested that this arrangement might be “feasible.” Justice Phelan for the Federal Court did not review the earlier jurisprudence, such as T.L., that addressed the issue of anonymous representative plaintiffs. Instead Justice Phelan held that “if feasible, at least one public class representative should be identified.”

The anonymity of the representative plaintiffs was raised on the appeal in John Doe v. Canada. The Federal Court of Appeal stated that class members cannot make an informed decision about the worth and suitability of their representatives if they do not have the ability to communicate with the representative plaintiffs. Communication with representative plaintiffs may be crucial for class members when the time comes to decide whether to opt out of the class action.

The Federal Court of Appeal noted that, in the circumstances of this case, there were individuals who were willing to publicly identify themselves and it was therefore possible for the plaintiffs to find 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.” 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.

Anonymous representative plaintiffs in privacy class actions

Privacy class actions raise unique considerations when it comes to the use of anonymous representative plaintiffs. Privacy claims in non-class action contexts have proceeded with publication bans or by using pseudonyms for plaintiffs (such as, for example, Doe 464533 v N.D.). Due to the nature of the claim for breach of privacy, there is a tension between not wanting to injure the privacy interests of the representative plaitniff further by disclosing their identity and the principle of an open court and the role of a class representative. The plaintiffs often claim that requiring a representative plaintiff to be named would only exacerbate the harm that the proceeding is intended to remedy. Many new class actions have been filed in Canada using anonymous representative plaintiffs. However, to date no privacy class action has been allowed to proceed in Canada with an anonymous representative plaintiff.

Anonymous representative plaintiffs in the U.S.

The issue of anonymous representative plaintiffs in class actions is also been an issue in the U.S. In a class action involving the computer hack of the online dating website Ashley Madison, an American federal judge ruled that the representative plaintiffs would have to be publicly identified to proceed with the case. In Re Ashely Madison Customer Data Security Breach [PDF] the Court ruled that the class representatives have an obligation to represent the class of plaintiffs and therefore must disclose their identities. In addition, the court noted “[…] the personal and financial information plaintiffs seek to protect has already been released on the Internet and made available to the public.” The Court noted that the representative plaintiffs could dismiss their complaints and proceed, without publicly disclosing their names, as class members if and when another class action is certified.