Court File and Parties

Court File No.: CV-18-595462 Date: 2018-05-18 Superior Court of Justice - Ontario

Re: BeneFACT Consulting Group Inc. and Michael Chorr, Applicants And: Glassdoor Inc., Respondent

Before: Carole J. Brown, J.

Counsel: R. Gilliland and T. Mrejen, for the Applicants No one appearing for the Respondent although duly served

Heard: May 16, 2018

Endorsement

[1] The applicants, BeneFACT Consulting Group Inc. ("BeneFACT") and Michael Chorr, seek a Norwich Order requiring Glassdoor Inc. to disclose personal information including, but not limited to, the names, email addresses and IP addresses, of the people associated with the Glassdoor posts on its website which are the subject matter of this application.

[2] The applicant, BeneFACT, is a private company which assists clients with claims for tax credits related to Scientific Research and Experimental Development (SR & EP) and digital media. It is based in Mississauga, Ontario, with its employees in Ontario. The applicant, Michael Chorr, is its CEO and co-founder. He resides in Toronto.

[3] The respondent is a job search/recruiting website allowing for reviews of companies and management. Reviews are posted by Glassdoor members on its website.

[4] Since 2016, the applicants have been repeatedly defamed on the Glassdoor website. Those posting the defamatory comments are anonymous, although Glassdoor maintains information with respect to all of its members who post comments and reviews on its website, including their names, email and IP addresses. Glassdoor's Policy states that it may disseminate members' personal information if compelled to do so by legal authorities.

[5] The applicants state and have provided evidence that the defamatory postings have caused harm to their reputation, loss of clients and loss of opportunity for new clients, as well as loss of potential candidates for employment.

[6] The applicants have attempted to obtain disclosure of the information sought from Glassdoor but without success. Glassdoor was advised that this motion would be brought. Initially, they retained Toronto counsel who contacted the applicants' counsel to advise that they may seek a stay order. There was an agreement that this application would not proceed pending the motion for stay. However, that was not proceeded with, and counsel for Glassdoor, although duly served with this application, has not appeared before this Court.

[7] A potential plaintiff may seek pre-action discovery to ascertain the identity of the defendant by way of an equitable bill of discovery known as a Norwich Order: GEA Group AG v Ventra Group Co., 2008 20043 at para 8, reversed on other grounds 2009 ONCA 619, [2009] O. J. No 3457 (ONCA).

[8] In determining whether a Norwich Order should be granted, the court will consider the following factors:

a. Whether the applicant has shown a valid, bona fide reasonable claim;

b. Whether the applicant has established that the third party, from whom information is sought, is somehow involved in the acts complained of;

c. Whether the third party is the only practicable source of the information;

d. Whether there is an agreement to indemnify the third party; and,

e. Whether the interests of justice favour the obtaining of disclosure from the third party.

[9] As regards the bona fide claim, to succeed in an action for defamation, the plaintiff must show that the words about which the plaintiff complains are defamatory; that they referred to the plaintiff and that they were published to third persons. Having reviewed the postings on the Glassdoor website posted by its members regarding the applicants, as adduced in evidence on this application, I am satisfied that they are defamatory, that they refer to the applicants and that they were published on the Glassdoor website and are accessible to third parties and website users at large. The first criterion is satisfied.

[10] I note further, from the evidence, that these postings have harmed the Applicants' business.

[11] As regards the second criterion, I am satisfied that the third party, from whom the information is sought, is involved in the acts complained of. Glassdoor provides the website on which the members/posters compose, publish and disseminate their anonymous posts from anonymous accounts. Glassdoor facilitates their anonymous communications and thereby is involved in the acts complained of beyond being a "mere witness". The second criterion is satisfied.

[12] As regards the third criterion, Glassdoor is the only practicable source of the information sought. As the accounts and posters of the communications on the Glassdoor website are anonymous, and as Glassdoor requires that all members/posters provide their names, email addresses and IP addresses, they are the only practicable source of the information sought. With the information sought from Glassdoor, the applicants can seek a remedy to terminate the ongoing defamatory communications posted on the website. I am satisfied that the third criterion is met.

[13] As regards the fourth criterion, Michael Chorr has agreed to indemnify Glassdoor for any costs or damages that may result from compliance with the order sought. The fourth criterion is met.

[14] I am satisfied that the fifth criterion is also met. It is in the interests of justice to grant this order for the following reasons.

[15] Firstly, Glassdoor's Terms of Use indicate that users may be reported to authorities and that Glassdoor has no obligation to protect the anonymity of users. They also contain a requirement that users not post content that is defamatory. Glassdoor appears not to monitor the communications of the members using its website to ensure that this policy is honoured. I have also considered section 7(3)(c) of the Personal Information and Electronic Documents Act ("PIPEDA") as regards disclosure of such information by an ISP.

[16] Further, the interest of justice does not favour permitting anonymous posters to engage in a campaign of defamation against individuals and businesses. As stated by Strathey J (as he then was) in York University v Bell Canada Enterprises et al, 2009 CanLII 46447 (ON SC), 99 O.R. (3d) 695 (2009) at para 20:

I have no hesitation in finding that the balance weighs heavily in favour of granting the relief sought. To find otherwise would be to give the clearest indication to those who wish to defame that they can do so with impunity behind the screen of anonymity made possible by the use of websites on the Internet.

[17] I am satisfied that all criteria as regards granting a Norwich Order have been met in this case.

[18] I grant the Order sought and require that Glassdoor provide any information in its possession, power or control that would assist the applicants in identifying the persons responsible for the posts attached as Schedule A to the order signed.

[19] I grant costs to the applicants as against the respondents in the amount of $6,000.

Carole J. Brown, J.

Date: May 18, 2018