Court of Appeal for Ontario
Chambers Judge: Simmons J.A.
Parties: Benefact Consulting Group Inc. and Michael Chorr (Respondents) v. Glassdoor Inc. (Appellant)
Transcript of Handwritten Endorsement
Order
Order to go granting a stay of the Norwich order dated May 16, 2018, pending further order of this court on terms that the responding parties may, if so advised, seek an expedited hearing date for the appeal pursuant to this order. Costs of this motion are reserved to the panel hearing the appeal.
Reasons
1. The moving party has perfected its appeal and the appeal is scheduled for January 30, 2019.
2. I am satisfied there are serious questions to be tried on the appeal, including whether the application judge erred in assuming jurisdiction in this matter in the face of the forum selection clause in the moving party's Terms of Use and whether the responding parties agreed to the moving party's Terms of Use. The responding parties assert there is no evidence they accepted the Terms of Use. However, it does not appear they took that position before the application judge. Further, although they did apparently assert that the forum selection clause is unenforceable under Douez v. Facebook, Inc., 2017 SCC 33, the application judge made no finding in that regard. In my view, the issue is at least arguable.
3. Given that the Norwich order requires that the moving party disclose personal information of third parties, I am also satisfied that the moving party will suffer irreparable harm if a stay is not granted in that either it will be unable to litigate the validity of its forum selection clause in relation to the third party information it has been ordered to disclose (which cannot be undisclosed once ordered disclosed) or it could be required to face the consequences of contempt proceedings.
4. I conclude that the balance of convenience favours the moving party. I acknowledge that the application judge has made a finding of harm to the responding parties. However, the appeal is scheduled to be heard only three months from today and I have left it open to the responding parties to obtain an expedited hearing date. Although the responding parties contend the nature and character of the defamatory posts has increased over time, the fact remains that they took no legal action even though they were aware of such defamatory posts for some considerable period of time.
5. I have considered that there have been continuing defamatory posts on the moving party's website since the Norwich order was made. However, there are steps that can be taken through the moving party's website to mitigate same.
6. I reject the responding parties' submission that the appeal is an abuse of process because the moving party did not appear in the court below. The issue is the court's jurisdiction in the face of a forum selection clause. I consider it to be in the interests of justice that the court consider that issue on the merits, as it was not dealt with in the court below.
7. I agree that the moving party could and should have moved more promptly for a stay. Nonetheless, I am not persuaded that its failure to do so reflects bad faith. I accept that the moving party was making bona fide efforts to resolve the issues in the meantime, both through steps on its website and negotiations.