Court File and Parties

COURT FILE NO.: CV-22-00675656

DATE: 20220224

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Obsidian Group Inc., Defendants

– AND –

Google LLC, John Doe, Jane Doe, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Daniel Ciarabellini, for the Plaintiff

James Bunting, for the Defendant Google LLC

HEARD: February 4, 2022

ADDENDUM TO INJUNCTION endorsement

[1] In my decision of February 4, 2022, I issued an injunction and Norwich Order against Google LLC (“Google”) requiring it to remove from Google Review certain negative reviews about the Plaintiff’s hotel business and to disclose certain information about the source of those reviews: Obsidian Group Inc. v. Google LLC, 2022 ONSC 848.

[2] The motion record contained evidence indicating that the named authors of the reviews were never hotel guests at the Plaintiff’s establishment and were likely not the true authors. In fact, the evidence suggested that a contractor with whom the Plaintiff had done business and with whom there was a financial dispute was the likely, although not the definitively proven, author of the reviews in issue. For that reason, the Plaintiff named the authors as John Doe and Jane Doe until such time as their identity is fully established.

[3] The Plaintiff has now moved on the basis of the same evidentiary record to enjoin John Doe and Jane Doe from posting further reviews of this nature about the Plaintiff and its business, and requiring John Doe and Jane Doe to remove the existing reviews that were the subject of my February 4, 2022 Order. As fully explained in my previous endorsement, the record supports this relief. The reviews in question are prima facie defamatory: Ibid., at paras 6-7.

[4] There will be an Order applying the injunction to John Doe and Jane Doe as submitted by Plaintiff’s counsel. The Order will be in effect until further Order of the court. When and if John Doe and Jane Doe are identified, they will be at liberty to move to remove or vary the Order, as they see fit.

[5] In addition, Plaintiff’s counsel has brought to my attention that Google was not properly served with the initial motion materials. In my February 4, 2022 endorsement, I indicated that although originating process must be served by personal service under Rule 16.01 of the Rules of Civil Procedure, and that generally does not include service by email, I would consider Google to be an exception to this Rule. At para 19 of my endorsement, I explained the crux of my ruling on the service issue:

[19] In the affidavit of service filed with the motion materials, Obsidian’s counsel identifies the three email addresses that he used to put Google on notice. He explains that these are the very addresses which Google itself announces on its website are to be used for delivery of all inquiries, complaints, requests for removal, and civil litigation notices.

[6] It turns out that this information was inaccurate. Plaintiff’s counsel and Google’s counsel have now both written to me and appeared before me to make a joint submission that Google was never properly served. The email address which Plaintiff’s counsel thought was Google’s preferred address for service of process is, in fact, an address that Google uses for the public to make inquiries about service of process. It is not an agreement in advance to be served by email for any civil claim, and it should not have been taken to represent such an agreement. I thank both counsel for bringing this to the court’s attention, and particularly commend Plaintiff’s counsel for raising the matter on his own as soon as he discovered the misunderstanding.

[7] The upshot of this is that Google must be served in accordance with the Rules, just like any other party in civil litigation. It does not hold itself out as being available for service by email and such service of an originating process would not be proper service absent Google’s specific consent. Accordingly, the February 4, 2022 injunction and Norwich Order as against Google is set aside.

[8] The Plaintiff and Google have reached an agreement on certain disclosures that Google will make with respect to the source of the reviews in issue. The terms of that agreement will be included in a new Order setting aside the previous injunction, as submitted by Plaintiff’s counsel.

[9] There will be no costs for or against any party of the further submissions leading to this addendum.

Date: February 24, 2022 Morgan J.