Cheskes v. Ontario

The Canadian province of Ontario (defendant) enacted legislation that permitted the disclosure of birth parents’ and adoptees’ identifying information. The legislation did not provide for a contact veto, which would have allowed a party to prevent his information from being disclosed to adoptees or birth parents who sought it, known as searching parties. Three adult adoptees and one birth parent, representing the interests of non-searching parties (non-searchers) (plaintiffs), sued the province of Ontario in the Ontario Superior Court of Justice, a trial court, arguing that the legislation improperly violated their right to privacy because of the lack of contact veto and because the non-searchers’ information could be compromised in a data breach. At trial, it was shown that a contact veto would have protected the privacy interests of most non-searchers. There was also evidence at trial that searching parties had organized themselves and hired lobbying groups to represent their interests, while non-searchers remained anonymous and underrepresented in the debate about the legislation. Other evidence showed that searching parties frequently suffered severe emotional damage when they were unable to obtain information about their birth parents. Between 3 percent and 5 percent of non-searchers indicated that they did not wish to be contacted by their birth parents or birth children. Some non-searchers feared an upheaval in their lives if they were contacted, while others did not wish to revisit the past.