Court File and Parties

TORONTO COURT FILE NO.: CV-18-601250 DATE: 20180927 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Monika Caryk Applicant – and – Melinda Karlsson Respondent

Counsel: Sheila Block and Irfan Kara, for the Applicant Gil Zvulony, for the Respondent

HEARD: September 14, 2018

Ruling on Application

MULLINS J.:

[1] Ms. Caryk asks the Court to make an order requiring Melinda Karlsson to:

…disclose and provide any and all information and knowledge that is in any way relevant to her allegations that Ms. Caryk has engaged in cyberbullying of Mrs. Karlsson.

Background

[2] Ms. Caryk is the fiancée of Mike Hoffman. Mrs. Karlsson is the wife of Erik Karlsson. Until recently, Messrs. Hoffman and Karlsson played professional hockey for the Ottawa Senators Hockey Club. Mr. Karlsson has finished four times as the NHL’s top defenceman and twice won the Norris Trophy, whereas Mr. Hoffman was one of the club’s most consistent goal scorers and led the team in scoring for the last four years.

[3] As this is Canada, this Court takes judicial notice of the fact that Messrs. Hoffman and Karlsson have recently been traded to different NHL teams, coasts apart, in Florida and California respectively.

[4] As the girlfriend of Mr. Hoffman, as she then was, and the girlfriend of Mr. Karlsson as she then was, Ms. Caryk and Mrs. Karlsson were part of a social circle associated with the men who played for the Senators Hockey Club. Ms. Caryk and Mrs. Karlsson were not friends, but were friendly, for a time. Around the time Mrs. Karlsson became engaged to Mr. Karlsson, Ms. Caryk noticed fewer likes on social media sites she favoured, such as Facebook and Instagram. She felt left out of social events. Though not the only one thus excluded, she felt severe (sic) damage (sic). She was not invited to the party celebrating the Karlssons’ engagement. She was hurt. She was angry.

[5] When cross-examined, Ms. Caryk explained:

..... and I were at the gym and she goes, oh yeah, did you see they got engaged. And, like of course I did. Like, I’ve been waiting forever. Like, this just sucks for me-wise. This had nothing to do with Melinda, not one bit. Any girl – like, a lot of girls go through something like this who sit there for so long and wait for something that they want for their whole life and it’s just – like, to see someone else do it, you’re not unhappy for them you’re just unhappy that it hasn’t happened to you yet. So nothing negative was said about Melinda, just to make that clear.

[6] Ms. Caryk may, she acknowledges, have made unflattering observations about the Karlssons. If so, she was intoxicated when she spoke and doesn’t have a good recall of what she may have said. Her words were twisted, she surmises, as they passed from one to another within the social circles of women associated with NHL players, before reaching Mrs. Karlsson’s ears. As to any expression of animosity or ill will toward Mrs. Karlsson, Ms. Caryk characterizes her feelings thusly:

Animosity yes, because this wall kept getting built up and built up, and it’s like why doesn’t this girl like my (expletive deleted), why does this girl never talk to me. Like, it just builds up. Like, this is years of build up.

[7] Mr. Hoffman has since popped the question, so Ms. Caryk is now engaged to be married and the Karlssons have since wed.

[8] On March 19, 2018, Ms. Caryk learned that Mrs. Karlsson had given birth to a son. Tragically, the child was stillborn. Ms. Caryk suggested to the wife of another hockey player that flowers be sent to Mrs. Karlsson. To her surprise and horror, between March 19 and 21, 2018, Ms. Caryk received hostile responses by text and emails from four women. Taylor Winnick and Kodette LaBarbera, wives of professional hockey players, accused Ms. Caryk of harassing and bullying Mrs. Karlsson online, using social media. The others suggested she stay out of events involving Mrs. Karlsson.

[9] Prompted by these accusations of online bullying, Ms. Caryk visited a website known widely amongst NHL players and their partners. The site, talk-sports.net, allows people to post comments in an open forum. Often, explained Ms. Caryk, the posts are negative, untrue and hurtful. She thinks the website is shameful. Randy Morin, who operates the site, is reported to have said the site was never intended to be a gossip website, but over time, it has become a place frequented by wives and partners and those fans who care more about athlete (sic) relationships than championships.

[10] When Ms. Caryk looked at talk-sports.net to better understand why she had received surprising and horrifying texts and emails, she saw harmful posts about Mrs. Karlsson. Those posts were harmful to her own reputation she deposes, because she was being wrongly accused of posting them. She texted Mr. Morin on March 21, about what she termed the ‘Erik Karlsson (sic) girlfriend discussion’ on the site, asking that the posts be removed and explaining that a group of girls thought she was posting them. In response, Mr. Morin indicated she should click ‘report abuse’. She continued to ask for his help in linking the posts to specific people but did not take up his suggestion.

[11] On June 12, 2018, the Ottawa Citizen reported that Mrs. Karlsson had sworn an application under section 810 of the Criminal Code, commonly known as a peace bond, alleging that Ms. Caryk had threatened her and her husband. Denials of the accusations by Ms. Caryk and Mr. Hoffman were reported in the same article. The paper reported, accurately, that the allegations made by Mrs. Karlsson in the section 810 application included that Ms. Caryk had posted over 1,000 negative and derogatory statements about Mrs. Karlsson as a professional. The article also reported a blasting by Erik Karlsson of an anonymous troll who, within Mr. Karlsson’s post mourning his dead son, had accused Mrs. Karlsson of popping pain killer medication. Evidently, Mr. Karlsson’s post had garnered more than 10,000 comments, with this one exception. Reports of investigations ongoing by the Ottawa Senators and Ottawa Police Service were made within the short flurry of media coverage that occurred over the next day or two.

[12] The application by Mrs. Karlsson for a peace bond was not served upon Ms. Caryk and has expired. The court file has been sealed.

[13] Ms. Caryk complains of having received more than 100 posts on Instagram that were critical of, or threatening to her, and of being accosted while on vacation because of the attribution to her of authorship of nasty online posts about Mrs. Karlsson. She has been attempting to retrieve the Instagram posts she received, having deleted them without having read them through.

[14] She reached out to an IT contact. That person looked into the talk-sports.net website. He provided a report to Ms. Caryk. It confirmed that none of the IP addresses he was able to extract from several harmful posts about Mrs. Karlsson matched Ms. Caryk’s. Counsel for Ms. Caryk spoke to two experts to whom the report was given and was told that additional information is required to permit further efforts to find the perpetrators, hence this application. The nature of that further information is not particularized.

The Norwich Order

[15] A Norwich Order, or, discovery before a proceeding, may be ordered to enable the evaluation of a cause of action, to identify a wrongdoer, or preserve evidence, amongst other purposes. Here, the applicant wants further information from Mrs. Karlsson in order to identify those responsible for 1,000 or more posts referenced by Mrs. Karlsson in her section 810 application. As well, Ms. Caryk wishes to pursue declaratory relief to the effect that she was not the author of the 1,000 alleged posts, so that she may, by dissemination of a declaration in the locker room of the Florida Panthers and elsewhere, restore her damaged reputation.

[16] Norwich Orders are a form of equitable relief. A leading case is the decision of the Ontario Court of Appeal in GEA Group AG v. Ventra Group Co. et al, reported at 2009 ONCA 619, 96 O.R. (3d) 481. The test for granting relief includes the following:

i. Has the applicant provided evidence sufficient to raise a valid, bona fide or reasonable claim? ii. Has the applicant a relationship with the person from whom the information is sought such that it establishes that she is somehow involved in the acts about which there is complaint? iii. Is the person the only practicable source of the information available? iv. Can the party be indemnified for costs of the disclosure? v. Do the interests of justice favour an order of disclosure?

Submissions on behalf of the Applicant

[17] Public reporting of the attribution by Mrs. Karlsson to Ms. Caryk, of negative and derogatory online posts, continues to imply that Ms. Caryk is the perpetrator, submits the applicant. Ms. Caryk has received one hundred messages, some of which contain death threats. It has been determined that several harmful posts about Mrs. Karlsson do not denote Ms. Caryk’s IP addresses. Ms. Caryk and her counsel’s efforts to obtain information from the Karlssons, and seeking their collaboration to further investigate, have been rebuffed. Ms. Caryk is prepared to indemnify Mrs. Karlsson for reasonable costs of disclosure. The relief sought falls squarely within the appropriate purpose of identifying a wrongdoer. The threshold to show one has a bona fide or reasonable claim is low. It is sufficient that the purpose to be served is not vexatious or frivolous. The decision in York University v. Bell Canada Enterprises, 99 O.R. (3d) 695, is an example where disclosure was ordered in relation to defamatory emails and website postings, because the postings were, in the court’s view, capable of being found to be defamatory. It doesn’t matter whether the respondent participated in any wrongdoing, only that she is involved. There is no other source than Mrs. Karlsson, since it is her attribution of authorship to Ms. Caryk that gives rise to the harm. The costs of disclosure would likely be minimal. There is no evidence of prejudice to Mrs. Karlsson should an order be made, and it would serve the interests of justice of not only the parties, but generally, that the true wrongdoers be identified.

Position of the Respondent

[18] Ms. Caryk has no tenable cause of action submits the respondent. There is no evidence that she was framed or set up. As the online posts were about Mrs. Karlsson, not Ms. Caryk, she has no cause of action as against the authors. There is no right to ask a court to make a declaration to clear a person’s name. Mrs. Karlsson is not involved in the acts about which there is complaint. Ms. Caryk has not demonstrated that Mrs. Karlsson has any information that could not be more readily obtained from more direct sources, as for example, Randy Morin or the two women who accused her of online bullying. Ms. Caryk is really seeking to discredit Mrs. Karlsson, while there are ongoing investigations, including that of police. Mrs. Karlsson’s application under section 810 of the Criminal Code is a matter of absolute privilege and its content cannot be used to found another proceeding. Equity does not favour Ms. Caryk in all of the circumstances.

Ruling

[19] In the decision given in York University v. Bell Canada Enterprises, Strathy J. (as he then was) ordered two internet service providers to disclose the names and contact information of customers who had posted allegedly defamatory content. He said this information was necessary to identify the defendants in an action for libel. The internet, he reasoned, cannot be used with impunity to spray libellous electronic graffiti in cyberspace. Norwich Orders are an extraordinary, equitable, discretionary and flexible remedy, to be exercised with caution, because they are also intrusive, he explained.

[20] It is worthy of note that the relief herein sought, for Mrs. Karlsson to disclose and provide any and all information and knowledge that is in any way relevant to her allegations that Ms. Caryk has engaged in cyberbullying of Mrs. Karlsson, does not particularize what is sought that might predictably yield identifying information about who was responsible for any of the 1,000 putative postings. It should.

[21] There is little doubt that Ms. Caryk, subjectively, has a good faith belief that her reputation has been damaged and that she has suffered emotional harm as a result of the wrongful attribution to her of cyberbullying of Mrs. Karlsson. Ms. Caryk was not, obviously, the object of the allegedly defamatory posts on the internet; Mrs. Karlsson was. From the two women who accused her, Ms. Caryk does not seek a disclosure order.

[22] Ms. Caryk’s claims here, if any, arise, in fact, from media reporting of the allegedly wrongful attribution by Mrs. Karlsson made on June 12, 2018, in a now-defunct peace bond application. Other than Mrs. Karlsson’s bald assertion and, maybe, a weak inference arising from the circumstance that Ms. Caryk knew exactly where to look for nasty posts, there is simply no evidence that Ms. Caryk did make any such postings. Ms. Caryk says she has no intention to sue Mrs. Karlsson because Mrs. Karlsson has suffered enough. The media reported the allegations of Mrs. Karlsson and the denials of Ms. Caryk simultaneously. Any perceivable prominence given to one over the other has only to do with the players, not their partners. Only one website was identified in the evidence. Ms. Caryk did not avail herself the opportunity to report as abuse the posting on that site about Mrs. Karlsson. Ms. Caryk has already had the postings investigated and has reasonable evidence they did not originate with her.

[23] So, are those who anonymously post internet content that is capable of being received as negative and derogatory of a person’s professional reputation, potentially liable for the incorrect attribution of authorship by others, to others? Possibly. It may be something more than frivolous or vexatious to so claim, but it would be an attenuated claim at best. Does an individual have the right to seek an in rem declaration they didn’t post nasty things about another person? Probably not.

[24] Mrs. Karlsson was, obviously, involved in her own allegation of 1,000 online postings having been made by Ms. Caryk, but clearly, better information about those Ms. Caryk might actually hold accountable for any actual posts is best obtained from the website or sites hosting, and the service providers of those who have posted identifiable posts.

[25] Taking into account all of the circumstances in which Ms. Caryk responded to the perception she was not liked by Mrs. Karlsson and Mrs. Karlsson came to blame Ms. Caryk as the source of adverse online commentary, on a website well known within their social circle to carry malicious gossip, and in light of the tenuous likelihood of claims being effectively advanced, the interests of justice will not be well served by a granting of the order sought.

[26] The Applicant does not seek costs. The Respondent seeks costs on a full indemnity basis of $49,000. While the courts must respond appropriately and adequately to the new legal challenges raised by the breath and speed of communication in cyberspace, singular sensitivity to incautiously expressed words in which media are now, apparently, awash, should only involve the courts in exceptional circumstances. Under the circumstances of this case, there shall be no order as to costs.

Justice A.M. Mullins

Date: September 27, 2018

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Monika Caryk Applicant – and – Melinda Karlsson Respondent RULING ON APPLICATION

Released: September 27, 2018