Court of Appeal for Ontario

Date: 20211026 Docket: M52789

Miller J.A. (Motion Judge)

Between:

Echelon Environmental Inc. and Robert Rainford Responding Parties

and

Glassdoor Inc. Responding Party

and

John Doe Moving Party

Counsel: Julia Lefebvre, for the moving party Christine L. Lonsdale, for the responding parties, Echelon Environmental Inc. and Robert Rainford Jonathan G. Colombo and Amrita V. Singh, for the responding party, Glassdoor Inc.

Heard: October 7, 2021 by video conference

Endorsement

[1] John Doe brings this motion to extend the time to serve and file a Notice of Appeal from an order of Dow J., dated June 7, 2021, which denied his standing to appear as an anonymous party and make submissions on an Anti-SLAPP motion.

[2] For the reasons that follow, the motion is dismissed.

Background

[3] An anonymous poster, identifying as a former employee of Echelon, posted an online review of Echelon on the Glassdoor website. Echelon responded by bringing a defamation action against Glassdoor and the anonymous poster, referred to as John Doe. The identity of John Doe has not been revealed to either Echelon or the courts.

[4] Glassdoor took the position that Doe’s post was expression relating to a matter of public interest, protected by s. 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Relying on this section, Glassdoor brought an Anti-SLAPP motion to have Echelon’s action dismissed.

[5] Counsel for Doe advised in March 2021 that she intended to file a factum and make oral submissions on the Anti-SLAPP motion. Echelon objected.

[6] The parties appeared before Dow J. on June 7, 2021. Dow J. was unable to hear the substance of the Anti-SLAPP motion that day, and he adjourned it to July 28. He was able to deal with two preliminary matters: a sealing order and the issue of Doe’s right of participation. Dow J.’s endorsement noted that Doe had not filed a Notice of Intent to Defend, and ruled that Doe had no standing and could not be heard from in the Anti-SLAPP motion, “subject to any formal, on the record appearance by counsel for the John Doe and any step taken in the litigation as a result.” Thirty days elapsed, and Doe did not appeal.

[7] The Anti-SLAPP motion was returned before Pollak J on July 28. Counsel for Doe appeared, intending to reargue the issue of standing. However, Pollak J. adjourned all matters related to the Anti-SLAPP motion to Monday, August 16, 2021, to be heard by Dow J.

[8] On August 13, sixty-seven days from the date of Dow J.’s order denying Doe standing to appear at the Anti-SLAPP motion, Doe served a motion record seeking to extend his time to serve and file a Notice of Appeal. Counsel for Doe did not seek an adjournment of the Anti-SLAPP motion itself, which proceeded as scheduled on August 16, and was ultimately dismissed by Dow J. the day before this motion was heard. Glassdoor’s counsel advised this court that it intends to appeal the dismissal. Doe continues to press his motion to extend time to serve and file a Notice of Appeal from Dow J.’s order denying him standing.

Analysis

[9] This court will extend the time to serve and file a Notice of Appeal if an extension is required by the justice of the case: 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286, at para. 4. The court will generally consider the following factors:

1. Whether the appellant formed a bona fide intention to appeal within the relevant time period;
2. The length of delay in filing and the explanation for it;
3. Any prejudice that would be caused to the responding party by allowing the motion;
4. The merits of the proposed appeal.

See Howard v. Martin, 2014 ONCA 309, 42 R.F.L. (7th) 47, at para. 26; Leighton v. Best, 2014 ONCA 667, 20 C.B.R. (6th) 326, at para. 1.

[10] No one factor decides the outcome. All factors must be considered, but how they bear on what justice requires is context-specific: see Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; Monteith v. Monteith, 2010 ONCA 78, at para. 20.

Intention to appeal

[11] Counsel for Doe argues that he formed an intention to appeal very shortly after “appreciating the finality of Dow J.’s decision.”

[12] Counsel for Echelon argues that the finality of Dow J.’s decision was obvious on its face, and Doe waited to appeal as part of a tactical decision to make another attempt at getting a standing order from another judge. It was not until the collateral attack failed, and Doe realized that the motion would be returned before Dow J., that Doe decided to proceed with the appeal. Doe admits in his written submissions to this court that he only moved to appeal after “it was clear that Justice Dow’s decision could not be challenged at the new hearing” before Pollak J.

[13] I agree that Dow J.’s order was clearly final on its face. Dow J.’s order states that if Doe did not identify himself, he would have no standing and no right of participation. Nothing that happened subsequently could have caused Dow J.’s order to “crystalize” at a later date, as Doe’s counsel contends. The actions of Doe given the obviousness of the finality of Dow J.’s order and the absence of any change of circumstances suggest that Doe had no intention to appeal until well after the time period had expired, and that his delay was the result of a litigation strategy that failed.

[14] Even on Doe’s version of events, he did not form an intention to appeal during the relevant period. Doe claims to have only realized the finality of the order after Pollak J.’s adjournment, several weeks after the deadline to appeal had expired. Therefore the only intention he could have formed during the period before the deadline expired was an intention to challenge Dow J.’s order at the hearing before Pollak J., which is not the same as an intention to appeal: see, by analogy, Cunningham v. Hutchings, 2017 ONCA 938, at paras. 13-16.

The length and explanation for the delay

[15] The 67-day delay is not long, but Doe’s explanation for it is weak. His explanation rests on his misunderstanding as to whether Dow J.’s order was final. The salience of the explanation is diminished by the order’s obvious finality.

Prejudice to the Responding Parties

[16] In general, this court considers only prejudice caused by the delay in filing a notice of appeal, not prejudice that could be caused by the outcome of the appeal: 40 Park Lane Circle v. Aiello, 2019 ONCA 451, at para. 6. But in this case, the two considerations merge, and a proper account of the “justice of the case” requires me to have regard to both. Echelon occupies a far more difficult litigation position because of the delay than it would have occupied had Doe filed in a timely manner.

[17] Had Doe had brought his appeal in a timely manner, the Anti-SLAPP motion would have been adjourned, or Doe’s appeal expedited, so that the question of standing would have been resolved prior to the hearing of the Anti-SLAPP motion.

[18] Instead, Echelon will have to litigate Glassdoor’s appeal of the Anti-SLAPP dismissal on its merits, while simultaneously litigating an appeal of Doe’s standing. If Echelon prevails against Glassdoor but Doe is successful, the Anti-SLAPP motion will have to be heard again on a new record involving Doe – effectively invalidating the victory against Glassdoor.

Merits of the Appeal

[19] Doe argues that Dow J. made errors of law (1) in determining that Doe had no standing, and (2) in providing insufficient reasons.

[20] Doe asserts private interest standing as a named defendant in the action, and argues that the Anti-SLAPP motion (or the appeal of it) could affect Doe’s rights by resulting in the action being dismissed.

[21] Doe and Glassdoor argue that s. 137.1 serves to protect anonymous speech, and that part of protecting anonymous speech is keeping it anonymous in the context of a defamation action.

[22] I was not taken to any authority for the proposition that s. 137.1 modifies the general obligation that parties who wish to participate in litigation must identify themselves both to the court and to those against whom they are asserting rights. On its face, s. 137.1 does not provide for this. Section 137.1 protects a subset of speech not by maintaining its anonymity, but by providing an expedited procedure for having the action dismissed.

[23] The claim made is not only novel, but seems contrary to well-established principle, and without support in law.

[24] Doe is on slightly firmer ground with the argument that the reasons that were provided were insufficient. The reasons were brief and conclusory. But to be fair to the motion judge, the ruling he was asked to make was obvious. The difficulty on this motion is that I have no evidence of what argument the motion judge was invited to consider. Doe filed no materials and there is no transcript of the hearing. Even assuming the argument was the same as the one outlined before me – that the Anti-SLAPP provisions protect the anonymity of speech – it is nothing more than an assertion and need not have detained the motion judge.

The justice of the case

[25] There are no further considerations that have not already been addressed. Doe made a strategic procedural choice. That failed, and when Doe decided to appeal, he did so at a time and in a manner that - if successful - would result in significant expense and repetition of matters already litigated. On balance, the justice of the case does not require this court to grant an extension.

Conclusion

[26] The motion for leave to extend time is dismissed. The responding party is entitled to its costs of the motion. If the parties are unable to settle the quantum among themselves, I will receive brief submissions not exceeding three pages in addition to a bill of costs, to be filed with the court within 14 days of the date of this decision.

“B.W. Miller J.A.”