Law Times

Law Times • OcTOber 4, 2010 FOCUS PAGE 11 disclosure request in an online defamation case has created a "consistent road map" to guide litigators in future court ac- tions, says a lawyer involved in the matter. Torys LLP partner Wendy Warman case establishes new test for disclosure A BY ROBERT TODD Law Times n Ontario Divisional Court ruling that lays out a new test for a Matheson, who represented the Canadian Civil Liberties Asso- ciation as an intervener in the appeal, says Warman v. Fournier makes clear that disclosure in such cases isn't automatic. "It means there's now a ho- mogeneous approach to ob- taining disclosure in civil litiga- tion," she says. "This court has rounded out the circumstances that may arise in a manner that means a consistent approach will be taken by the court when these requests are made." The ruling comes out of a libel case involving Richard Warman, an Ottawa lawyer and anti-hate speech advocate who claims comments posted by a group of John Does in an Internet chat room on freedo- minion.ca defamed him. At the Ontario Superior Court of Justice in January 2009, Warman sought to force the web site operators, Con- stance Wilkins-Fournier and Mark Fournier, to help him discover the anonymous post- ers' identities by handing over Internet protocol addresses, e-mail addresses, and other ac- count information. Warman's lawyer, James Katz of Brazeau- Seller LLP, argued for automat- ic disclosure through the Rules of Civil Procedure. Justice Stanley Kershman agreed with Katz, but the Fourniers took the matter to the Divisional Court on ap- peal. The CCLA and Canadian Internet Policy and Public In- terest Clinic both intervened in the appeal. Divisional Court justices James Kent, Thomas Heeney, and Herman Wilton-Siegel had the task in Warman of determin- ing whether the information requested should be ordered to be disclosed automatically if the respondent could show relevance and a lack of protec- tion under typical privilege classifications or if privacy and freedom of expression interests must also be canvassed. The Fourniers, represented by Brighton, Ont., lawyer Bar- bara Kulaszka, argued War- man's disclosure request creat- ed a privacy concern. They said it would let him put together a full profile of each defendant through their Internet usage records for which they have a legitimate expectation of pri- vacy, according to the ruling written by Wilton-Siegel. The judge cited the British House of Lords 1974 ruling in Norwich Pharmacal Co. v. Cus- toms and Excise Commission- ers. That case determined that when privacy interests arise, "disclosure is not automatic even if the plaintiff establishes relevance and the absence of any of the traditional catego- ries of privilege," Wilton-Siegel wrote. In such circumstances, the court must consider wheth- er the plaintiff has offered suf- ficient evidence to create a "valid, bona fide or reasonable claim;" shown that the third party is the only reasonable source of the information; and that "the interests of justice fa- vour obtaining the disclosure," according to Wilton-Siegel. But in 2009, the Ontario Court of Appeal ruling in GEA Group AG v. Flex-N-Gate Corp. reaffirmed that judges are to apply the Norwich principles flexibly. On that point, the Di- visional Court pointed to the Federal Court of Appeal's 2005 decision in BMG Canada Inc. v. Doe. In that case, the court called for the disclosure of cus- tomer information by Internet service providers related to mu- sic file sharing through Rule 238(1) of the Federal Courts Rules, which relates to discov- ery from a non-party possess- ing relevant information. The Federal Court found that the same restrictions as outlined in Norwich apply and reaffirmed the motion judge's refusal to grant the order. Conversely, in the defama- tion action in 2000 in Irwin Toy Ltd. v. Doe, which involved a request for disclosure from an ISP, the court considered whether affidavit evidence demonstrated a prima facie case of defamation. In Warman, the Divisional Court found that the same principles outlined in BMG and Irwin Toy and articulated in Norwich apply. It ruled that disclosure isn't automatic. "If disclosure were auto- matic, a plaintiff with no le- gitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious action for the sole purpose of revealing the identity of anon- ymous Internet commentators, with a view to stifling such commentators and deterring others from speaking out on controversial issues," Wilton- Siegel wrote. "For this reason, the commencement of a defa- mation claim does not trump freedom of expression or the right to privacy." The court ruled that in the circumstances of Warman, the motions judge was required to canvass four factors: whether the unknown alleged wrong- doer could have a reasonable expectation of anonymity in the particular circumstances; whether the respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; whether the respon- dent has taken reasonable steps to identify the anonymous party and has been unable to do so; and whether the public interests favouring disclosure outweigh the legitimate inter- ests of freedom of expression and right to privacy. The court found that the motions judge in Warman didn't need to consider aspects of BMG that relate to third- party respondents. It also ruled that a prima facie standard, rather than a bona fide stan- dard, should apply. The mo- tions judge's failure to consider the merits based on that stan- dard constituted an "error of law," Wilton-Siegel wrote. The Divisional Court went on to refer the matter back to a different motions judge, who is to reconsider the disclosure The ruling in Warman will cre- ate more work for lawyers, says James Katz. request based on the principles outlined in the appeal ruling. As a result, Katz says the decision will create more work for lawyers like him. "It certainly added another hurdle that wasn't necessarily there before this decision was rendered in terms of what you have to bring to this kind of motion in the future," he says. "The first level of the test is that you have to show a prima facie case of defamation. We always thought that was something that, if there wasn't a prima Trust [ facie case, that's something the defendants could have dealt with by way of some sort of summary judgment motion or motion to strike." However, he's confident Warman's disclosure request will meet the standard set out by the Divisional Court when it re- turns to a new motions judge. "The issue of whether this information was relevant or not was not even discussed because it is relevant," he says. "It's just a question of what kind of stan- dard does the plaintiff have to meet before the gates open and they're allowed to see that kind of subscriber information." Kulaszka said in an e-mail to Law Times that the ruling "bal- ances the rights of those speak- ing anonymously on the web with those who believe they have been defamed." But more needs to be done to update defamation laws for the Internet age, including a review of the Libel and Slander Act, she said. "The law developed in an entirely different social con- text and should be changed to accommodate the social and technological era we live in," said Kulaszka. LT Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. Wendy Moore Johns | David Payne | David Tenszen For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom Untitled-4 1www.lawtimesnews.com 5/4/10 2:56:13 PM

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