Court File and Parties
COURT FILE NO.: 17-71847 DATE: 2017/07/18 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Carleton Condominium Corporation No. 282, Applicant AND Yahoo! Inc., Yahoo! Canada Co., c.o.b. in Ontario as 1341394 Ontario Inc., John Doe #1 and John Doe #2, Respondents
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Rodrigue Escayola for the Applicant No one appearing for the Respondents
HEARD: June 20, 2017; written submissions filed June 30, 2017
Endorsement
Overview
[1] Carleton Condominium Corporation No. 282 seeks a Norwich order requiring Yahoo! Inc. and Yahoo! Canada Co. to disclose information it says is necessary to obtain the identity of the author of allegedly defamatory emails sent to owners and occupants of the Condominium Corporation.
[2] The emails were sent by an individual using the name “Ian Fleming” (the author of the James Bond series) from the email address vers5@yahoo.com, following the resignation of the Condominium Corporation’s superintendent on November 22, 2016. In the first email of November 23, 2016, “Ian Fleming” wrote:
…However, having spoken to Rameez [the former superintendent] on several occasions, I understand this issue has been brewing for a long time between him and another board member Ted Vicks and his contractor friend Art Nault. I understand this contractor has been given free reign at 50 Emmerson at the expense of us its owners under the leadership of Connie [the president of the board of directors] and the board who I understand has been turning a blind eye to the harressment [sic] of Rameez. I also understand Rameez has brought up this issue with his manager Michael Sargent, Connie, and other board members but no action has been taken or it seems we have not seen any action taken to rectify the problem or address it through these recent emails. Do I take it the board members and President are getting kickbacks and this is the only way to route [sic] out a problem? Where is the transparency in all this and why in these circumstances has the board not shown impartiality and justice.
Issues like this cannot be handled by the board in such a lackadaisical fashion…
[3] In a second email, also sent on November 23, 2016, “Ian Fleming” wrote, “Hoping the special meeting will be an opportunity for Rameez, the board and Art Nault to tell everyone exactly what transpired…”
[4] The president of the board of directors of the Condominium Corporation emailed “Ian Fleming,” asking the author of the email to identify himself or herself. In a November 24, 2016 response, “Ian Fleming” wrote:
My dear Connie, who I am has suddenly become irrelevant. I was stating the truth as told to me by dear Rameez. He has left our service because of the mistreatment and harassment he has received and the inability of the board to solve these problems when he urged you all.
[5] A November 26, 2016 “cease and desist” email from the president of the board could not be delivered to vers5@yahoo.com because the user did not have a yahoo.com account.
[6] Yahoo! Canada neither opposes nor consents to the Condominium Corporation’s application. Yahoo! did not attend in court on June 20, 2017 and has not taken any position on the application. John Doe #1, whose identity is unknown to the Condominium Corporation, is the individual using the “Ian Fleming” alias. John Doe #2, whose identity is also unknown, is an internet service provider providing service to “Ian Fleming.”
[7] Following submissions on June 20, 2017, I requested that counsel for the Condominium Corporation provide me with written submissions.
[8] The issue is whether I should compel Yahoo! and Yahoo! Canada to disclose information regarding the identity of and contact information for the individual who has used the username, Ian Fleming and the email address vers5@yahoo.com. The Condominium Corporation also seeks disclosure of the internet protocol address(es) associated with the username, Ian Fleming and the vers5@yahoo.com email address. For the following reasons, I grant the Norwich order requested by the Condominium Corporation.
Test for a Norwich Order
[9] A Norwich order is a form of equitable relief that if granted, requires a third party to a potential action to disclose information that is otherwise confidential. The jurisdiction of Ontario courts to grant such relief is grounded in s. 96(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. (GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 at para. 71.) The following factors govern the determination of whether to grant a Norwich order:
(i) whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
(ii) whether the applicant has established a relationship with the third party from whom the information is sought, such that it establishes that the third party is somehow involved in the acts complained of;
(iii) whether the third party is the only practicable source of the information available;
(iv) whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure; and
(v) whether the interests of justice favour obtaining the disclosure. (GEA Group AG at para. 51 and York University v. Bell Canada Enterprises, 2009 ONSC 46447, 99 O.R. (3d) 695 (S.C.) at para. 13.)
[10] As the Court of Appeal for Ontario stated in GEA Group AG, a Norwich order is an equitable, discretionary and flexible remedy. At the same time, it is an intrusive and extraordinary remedy, to be exercised with caution. An applicant for a Norwich order is required to demonstrate that the pre-action discovery sought is required to permit a prospective action to proceed; however, the firm commitment to commence proceedings is not, itself, a condition precedent to the relief being granted. (GEA Group AG at para. 85.)
The Condominium Corporation has satisfied the test for a Norwich Order
(i) Valid, bona fide or reasonable claim
[11] In order to establish that a valid, bona fide or reasonable claim exists, the applicant for a Norwich order must demonstrate that the claim is not frivolous or vexatious. (Isofoton S.A. v. Toronto Dominion Bank (2007), 2007 ONSC 14626, 85 O.R. (3d) 780 at paras. 46-47.) A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers—one which causes him or her to be regarded with feelings of hatred, ridicule, contempt, fear or dislike by “right-thinking members of society.” The impressions about the content of the statement must be assessed from the perspective of a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. (Canadian Broadcasting Corporation v. Color Your World Corp., 1998 ONCA 1983, [1998] O.J. No. 510 (C.A.) at paras. 14-15.) I am satisfied that the words used in the emails are capable of being found to be defamatory of the members of the board of directors of the Condominium Corporation, Ted Vick, Art Nault, Connie Brook, and Mike Sargent. I find that the Condominium Corporation has demonstrated a bona fide claim for defamation against the originator of the emails.
(ii) Yahoo! and Yahoo! Canada are involved in the alleged wrongful acts
[12] Yahoo! and Yahoo! Canada are communication service companies who provide web-based email services. Without Yahoo!’s email services, “Ian Fleming” could not have written and sent the anonymous emails to the owners and occupants of the Condominium Corporation. While the Condominium Corporation does not allege that Yahoo! and Yahoo! Canada are implicated in or liable for the wrongful acts of the originator of the emails, they are involved in the wrongful acts and are more than mere witnesses. (Isofoton S.A. at paras. 49-50.)
(iii) Yahoo! and Yahoo! Canada are the only practicable sources of the information
[13] Yahoo! and Yahoo! Canada are the only practicable sources of the information. “Ian Fleming” has refused to identify himself or herself and the Condominium Corporation has no information about the originator of the emails other than the email address and the alias. Yahoo! and Yahoo! Canada can provide information which would allow the Condominium Corporation to identify the internet provider, IP addresses and source computers. The internet provider(s) may, in turn, be able to identify the municipal address from which the emails were sent, allowing the Condominium Corporation to identify the author of the emails.
(iv) Costs of compliance are nominal
[14] The costs of compliance are anticipated to be nominal. Neither Yahoo! nor Yahoo! Canada raised concerns about the potential costs associated with compliance. The Condominium Corporation has undertaken to indemnify Yahoo! and Yahoo! Canada for their reasonable costs of compliance.
(v) The interests of justice favour the disclosure
[15] The court is required to balance the benefit to the applicant of disclosing the requested information against the prejudice to the alleged wrongdoer in releasing the information. In so doing, the court may consider the nature of the information, the degree of confidentiality accorded to the information by the third party, and the degree to which the requested order curtails the use to which the information can be put. (York University at para. 30 and Isofoton S.A. at para. 57.) I find that the balance in this case strongly favours granting the relief sought for three reasons.
[16] First, there is no evidence before me as to Yahoo! and Yahoo! Canada’s privacy policies, although they were provided with notice of this application. However, s. 7(3)(c) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 authorizes the disclosure by an organization of personal information without the knowledge or consent of the individual if the disclosure is “required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records.” The confidentiality of the personal information requested from Yahoo! and Yahoo! Canada is not absolute. I agree with the Condominium Corporation that the originator of the emails could not have a reasonable expectation of privacy in relation to the use of the internet for the purpose of publishing defamatory statements to a wide group of recipients.
[17] Second, the Condominium Corporation has a duty under s. 17(3) of the Condominium Act, 1998, S.O. 1998, c. 19 to “take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules.” In York Condominium Corporation No. 163 v. Robinson, 2017 ONSC 2419, Morgan J. ordered the respondent to cease and desist from uncivil or illegal conduct that violates the Condominium Act, 1998 or the condominium corporation’s rules, and to refrain from abusing, harassing, threatening or intimidating any employee or representative of the corporation. In doing so, Morgan J. found the application to be “a step, reasonably designed” by the condominium corporation in that case to enforce the rules and to protect its workers from harassment. (at para. 14.) I find that the present application is a step, reasonably taken by the Condominium Corporation to ensure that its board members and employees are not subjected to statements which I have found are capable of being found to be defamatory.
[18] Third, the disclosure is necessary to identify the originator of the emails. This may require the Condominium Corporation to identify the originator’s internet service provider(s). The Condominium Corporation has established a bona fide claim of defamation against the originator of the emails.
[19] While it may be appropriate in a given case, to require that the originator of the alleged defamatory material be given notice of the proceedings by the third party, I do not consider it necessary to do so in this case. (York University at paras. 24 and 38.)
Conclusion
[20] In summary, I am satisfied that:
(i) The Condominium Corporation has demonstrated a bona fide claim of defamation.
(ii) Yahoo! and Yahoo! Canada, although innocent of any wrongdoing, are implicated in the alleged defamation because their services were used for publication;
(iii) Yahoo! and Yahoo! Canada are the only known potential sources of the information;
(iv) The costs of compliance are nominal and the Condominium Corporation has provided an undertaking to indemnify Yahoo! and Yahoo! Canada for their reasonable costs of complying with the order;
(v) The interests of justice strongly favour the Condominium Corporation obtaining the disclosure.
[21] For these reasons, I grant the Norwich order requested.