COURT FILE NO.: CV-20-124 (Sarnia)
DATE: 20221128
AMENDED RELEASED DATE: 20230504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephanie Braet
Plaintiff
– and –
Jens Christian Ramputh, Facebook, Inc., The Olde Angel Inn, Pat Darte, Heather Harvey, James Anthony Ramputh and Kateryna Melnyk
Defendants
Stephanie Braet, acting in person
Miranda Spence, for the Respondent Facebook, Inc. (Meta Platforms)
HEARD: June 8 and October 31, 2022
Amended decision: The text of the original decision was corrected on May 4, 2023, and the description of the amendment is appended.
AMENDED RULING ON MOTION
Dubé J.
A. INTRODUCTION
[1] The defendant, Facebook, Inc. (“FB, Inc.”), is a publicly held corporation incorporated under the laws of the State of Delaware, with its headquarters in Melo Park, California.
[2] Facebook Canada (“FB Canada”), is a legal and separate entity from FB, Inc. It does not host, operate, or control the Facebook service, which is operated and hosted by FB, Inc. and includes the website available at www.facebook.com and applications for mobile phones and tablets (collectively, “Facebook Services” or “FB Services”).
[3] On October 28, 2021, FB, Inc. changed its name to Meta Platform, Inc. (“Meta”). Since the unfolding of events in the matter mostly occurred before the name change, for ease of reference, I will use FB, Inc. or FB Canada instead of Meta, unless I am quoting from a source that uses the name Meta.
[4] The defendant, FB, Inc. brings a motion (“Motion to Set Aside”), dated September 3, 2021, that seeks, in part, the following:
a. An order setting aside or vacating the Order of the Honourable Mr. Justice Desotti dated June 24, 2021 (the “June 24 Order”) to the extent that it affects Facebook pursuant to r. 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended (“Rules”);
b. In the alternative, an order amending or varying the June 24 Order to the extent that it affects Facebook, Inc. pursuant to r. 37.14;
c. An order for costs on the substantial indemnity scale to be paid forthwith by the plaintiff.
[5] The plaintiff, Stephanie Braet (“Braet” or the “plaintiff”) opposes FB, Inc.’s motion and brings a cross-motion (“Contempt Motion”) against FB, Inc., dated December 30, 2021, seeking:
a. An order to hold FB, Inc. in contempt of court as it failed to provide the plaintiff with the materials that were the subject matter of the June 24 Order including Norwich discovery evidence;
b. An order dismissing FB, Inc.’s motion to dismiss or amend the June 24 Order;
c. An order to compel FB, Inc. to produce the Order materials immediately to the plaintiff;
d. An order to compel FB, Inc. to provide additional documentary evidence material to the plaintiff for the “logs of the email” for a certain address used by the plaintiff to serve FB, Inc.;
e. An order adding FB Canada as a defendant; and
f. An order for costs against FB, Inc.
[6] The plaintiff also brings a motion (“Motion to Examine”), dated June 7, 2022, seeking, in part, the following relief:
a. An order to examine counsel for FB, Inc., Miranda Spence and Damian Lu;
b. An order that FB, Inc. produce for inspection all documents and materials in connection with Damian Lu’s Affidavit of Service of September 28, 2022, and Tamie Dolny’s Affidavit of Service of January 21, 2022;
c. An order, if necessary, to summons witness(es) that are relevant persons in possession, control, or power of any documents relevant to any matter in this motion;
d. An order for costs against FB, Inc.
B. BACKGROUND
[7] My review of the background evidence is limited to those facts that are significant to the central issues, or that provide context necessary to appreciate and determine the relevant issues. The only evidence before me in support of these motions are from the following sources:
a. Affidavit of Stephanie Braet, sworn June 7, 2022.
b. Affidavit of Stephanie Braet, sworn May 20, 2022,
c. Affidavit of Stephanie Braet, sworn December 30, 2021.
d. Affidavit of Stephanie Braet, sworn June 11, 2021.
e. Affidavit of Tamie Dolny, sworn January 21, 2022.
f. Affidavit of Damian Lu, sworn September 28, 2021.
[8] The plaintiff and defendant, Jens Christian Ramputh (“Mr. Ramputh”), had a relatively short romantic relationship that ended poorly in September 2018.
[9] On September 3, 2018, the plaintiff discovered a series of apparent derogatory comments about her on FB Services that were posted by Mr. Ramputh. These and subsequent posts by Mr. Ramputh attracted critical comments and were shared among other FB Services users, including some who are named as defendants in this action (collectively, the “impugned posts”).
[10] On September 3, 2018, the plaintiff filed a written report to FB, Inc. on a “Defamation Reporting Post” (“Defamation Report”) complaining about the impugned posts. The Defamation Report was sent by email via a “Report Post” function (“Report Post Portal”) provided by FB Services.
[11] On September 4, 2018, in the second of two reply emails from FB, Inc. to the plaintiff in relation to the Defamation Report, the first one was sent on September 3, 2018, and acknowledged receipt of the Defamation Report, FB, Inc. advised:
…Based on the information you provided, it isn’t clear to us that the content you’ve reported constitutes defamation, violates your rights or is otherwise unlawful.
[12] On September 3, 2020, the plaintiff filed a Notice of Action followed by a Statement of Claim, dated October 3, 2020, against FB, Inc. and the other defendants (the “Action”). The plaintiff alleges that even after she sent the Defamation Report on September 3, 2018, FB, Inc. continued to allow the co-defendants and others to connect using FB Services thereby enabling users to post, repost and provide comments about the impugned posts which caused her emotional, physical, and financial harm. As a result, the plaintiff seeks damages in the amount of $200,000. The plaintiff alleges the following claims against the defendants:
a. Defamation/Libel (collectively “Defamation”)
b. Copyright Infringement
c. Cyber Bullying/Harassment
[13] In sum, the plaintiff seeks relief that includes the following:
a. Identifying, preserving and disclosing electronic URL evidence such as links, date and time stamps and the name of the offending parties (the “Norwich Order”);
b. Removing all the defamatory posts and comments (the “Take-Down Order”);
c. Prohibiting the defendants from further derogatory posts or images that refer to the plaintiff on FB Services (the “Refraining Order”);
d. A public apology from all the defendants.
[14] On March 3, 2021, the plaintiff sent FB, Inc. a copy of the Action through the Report Post Portal on September 3, 2018 (Affidavit of Service, Stephanie Braet, dated March 3, 2021).
[15] In her affidavit of service as well as her affidavit, sworn December 30, 2021, the plaintiff states that she followed up the email service by also mailing copies of the Action on March 3, 2021 “via regular mail” to “two out of the three general search platforms recovery for mailing address (i.e. Google), as Facebook did not provide easily a mailing address.”
[16] The plaintiff sent one copy of the Action to Facebook Inc., 1601 S. California Ave., Palo Alta, California, 94304 USA (the “Palo Alto, California address”). In her affidavit, sworn June 11, 2021, the plaintiff stated that she sent another copy to Facebook, Inc. Canada, 661 University Avenue, Toronto, Ontario, M5G 1M1 (the “Toronto, Ontario address”).
[17] After FB, Inc. missed the deadline for filing a Statement of Defence (40 days), the plaintiff served FB, Inc. with a Notice of Motion seeking the following relief:
a. An order validating service of the Action on FB, Inc.;
b. An order for alternatives to personal service on a corporation;
c. An order for substituted service or dispensing with service;
d. An order for service by email;
e. An order dispensing with service of a Notice of Motion;
f. Service outside Ontario with leave.
[18] Although her affidavit filed in support of the Service Motion, sworn June 11, 2021, is not entirely clear on this point, the plaintiff explains that she used the Report Post Portal to effect service because it was “provided by the Plaintiff from the Plaintiff’s requests and concerns for immediate removal of the marked Libel, Copyright, and Harassing URL posts and photos published on Facebook’s Social Media Publishing Platforms”. A copy of the email that the plaintiff used to send the Service Motion through the Report Post Portal is attached as Exhibit “F” to the plaintiff’s affidavit, sworn December 30, 2021, and contains the Palo Alta, California and Toronto, Ontario addresses. The plaintiff also used the Report Post Portal to serve the Action on March 3, 2021 (Affidavit of Stephanie Braet, para. 8, sworn December 30, 2021).
[19] The plaintiff also deposed that she sent the Action via regular mail to the Palo Alta, California and the Toronto, Ontario addresses. On or around April 14, 2021, the envelope containing a copy of the Action was returned to the plaintiff from the Palo Alta, California address (Affidavit of Stephanie Braet, Exhibit “F”, sworn June 11, 2021).
[20] The Action sent to the Toronto, Ontario address was not returned (Affidavit of Stephanie Braet, para. 11, sworn June 11, 2021).
[21] On June 17, 2021, the Service Motion was scheduled to be heard by the motion judge in Sarnia, Ontario.
[22] On June 16, 2021, at 7:44 p.m., Damian Lu from Aird & Berlis LLP, a Toronto, Ontario law firm representing Facebook Canada, emailed a letter to the plaintiff. Mr. Lu deposed in his affidavit sworn September 28, 2021, that Facebook Canada received a copy of the Action together with a copy of the plaintiff’s affidavit in support of the Service Motion on or about June 15, 2021. His subsequent search of FB Canada and FB, Inc.’s records determined that only FB Canada had been served with the Action and that FB, Inc. had received no documents in relations to these proceedings.
[23] In his letter to the plaintiff, Mr. Lu advised that while FB Canada had received copies of the Action, their client is a legal and distinct entity from FB, Inc. and not a party to the legal proceedings. Mr. Lu further advised that to the extent the documents in relation to the legal proceedings were meant for FB, Inc., they must instead be sent to the attention of the Legal Department at the Menlo Park, California address.
[24] On June 17, 2021, the plaintiff attended court before the motion judge via Zoom to argue the Service Motion. No representative from FB, Inc. were present. Materials filed by the plaintiff in support of the motion included the affidavit and attached exhibits, sworn June 11, 2021. During submissions, the plaintiff advised the motion judge that she received an email from a representative of FB Canada, who advised her to serve FB, Inc. with the materials at the “second address on my Statement of Claim”, which would have been the Menlo Park, California address.
[25] The motion judge then asked “…one of the things, Ms. Braet, is that obviously…one of the orders you’re seeking is that it be taken down, correct?” The plaintiff responds “yes, yes.. I didn’t know if I could get an order from you today…they are already labelled and provided in this motion link here to be taken down…but I’d thought I have to reserve them?” The motion judge then directed the plaintiff to draft an order by next week “to deal with taking down of that matter that you wish removed from Facebook … and it’s something that no one else needs or requires except you. You require this order.” When the plaintiff asked about “validating of service”, the motion judge responds “…you will serve them as you have previously, just in the same fashion with that order…”
[26] The plaintiff attended again before the motion judge on June 24, 2021 and he signed the draft order. The June 24 Order contains the following relief:
a. Validated service be granted for FB, Inc. via registered mail at the Menlo Park, California address, and email;
b. In the alternative, substituted service be granted to mail to the attention of the legal department at the Menlo Park, California address, and email;
c. The Norwich Order;
d. The Take-Down Order;
e. The Refraining Order; and
f. An order to waive the requirement that any other party must approve the form of the order.
[27] On July 13, 2021, the plaintiff received a copy of the June 24 Order.
[28] The Motion to Set Aside was filed by FB, Inc. and made returnable September 30, 2021.
[29] On December 30, 2021, the plaintiff filed the Contempt Motion and a supporting affidavit.
[30] After a full-day hearing on June 8, 2022, the matter was adjourned for continuation on October 31, 2022. In the meantime, the plaintiff filed the Motion to Examine which was ultimately scheduled to be heard by me on October 31, 2022.
[31] On October 31, 2022, submissions were completed with respect to the Motion to Set Aside and the Contempt Motion, however because of the late hour, I heard limited submissions on the Motion to Examine. With that said, my decision with respect to the June 24 Motion will, by its very nature, be dispositive of the plaintiff’s other two motions.
C. LEGAL PRINCIPLES AND ANALYSIS
Rule 37.14(1)(a) – Motion to Set Aside or Vary an Order
[32] The relevant parts of r. 37.14 applicable to the analysis regarding FB, Inc.’s motion to set aside or vary the June 24 Order are as follows:
(1) A party or other person who,
(a) is affected by an order obtained on motion without notice;
(b) fails to appear on a motion through accident, mistake or insufficient notice; or
May move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.
(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.
[33] In Canadian National Futsal Assoc. v. Canada Soccer Assoc., et. al., 2021 ONSC 202, Vella J. at para. 32, sets out the factors that I ought to consider under r. 37.14:
Under Rule 37.14, I must determine not only whether the order should have been made, but also whether, having been made, it should be rescinded or varied. The court is not restricted to determining whether the initial decision was correct but may also rescind the order if there has been a change of material facts. Once a person affected by an order made without notice to it moves to set aside, I may take into account whatever additional evidence and argument is put forward by the moving party, together with the evidence that was before the court on the initial order. I must make whatever order is appropriate in light of the ultimate purpose of Rule 37.14, which is to prevent unfairness or miscarriage of justice by affording a party opportunity to present its case, provided there are no countervailing considerations. [Citations omitted.]
a. Is FB, Inc. affected by the June 24 Order?
[34] Neither party took issue with respect to whether FB, Inc. is affected by the June 24 Order, as the corporation clearly is. FB, Inc. is a named defendant to the underlying action, and the June 24 Order validates service and grants substituted service as well as directs FB, Inc. to take certain steps in the form of a Norwich, Take-Down, and a Refraining Order.
b. Was the June 24 Order Made Without Notice or Without Sufficient Notice to FB, Inc.?
[35] The plaintiff focused almost exclusively on the issue of service and argued that FB, Inc. was properly served pursuant to the Rules. I have reviewed the plaintiff’s materials including her pleadings, factum, “Index”, oral submissions, and affidavits and although often confusing, I have attempted to understand and summarize her position as best I can as follows.
[36] When discovered, the plaintiff promptly reported the impugned posts on the Defamation Form that was sent to FB, Inc., via the Report Post Portal. The reply the next day, from who the plaintiff believed to be FB, Inc.’s “legal department”, stated that it was unclear that the content she reported constituted defamation, violated her rights or was otherwise unlawful. The posts were therefore not removed despite what the plaintiff submits to be a clear violation of FB, Inc.’s Terms of Service. As a result, the plaintiff commenced a court action.
[37] The plaintiff asserts that the FB, Inc.’s website and platforms were very difficult to navigate and provided no information regarding how to specifically contact their legal department or how to properly serve legal documents. Therefore, the plaintiff submits that pursuant to r. 16.01(4)(b)(iii), FB, Inc.’s legal department was served with both the Action and then later the Service Motion through the Report Post Portal, which, she argues, constituted an “agreed upon electronic document exchange” (“Electronic Document Exchange”). The plaintiff submits that the Report Post Portal has a registered IP address to the Menlo Park, California address.
[38] Although I am not entirely clear from her submissions, it appears that the plaintiff was able to obtain mailing addresses to serve materials on FB, Inc. by a Google search, including its Headquarters, however none appeared to be better suited for this purpose than the Electronic Document Exchange. On March 3, 2021, the plaintiff submits that as back up, and pursuant to r. 16.03(4), FB, Inc. was also properly served with the Action by regular mail at its last known addresses - the Palo Alta, California and Toronto, Ontario addresses.
[39] On or around April 14, 2021, the materials sent to the Palo Alta, California address were subsequently returned to the plaintiff with a sticker on the front of the envelope stating: “RETURN TO SENDER ATTEMPTED – NOT KNOWN UNABLE TO FORWARD”. The envelope had been opened and the materials obviously reviewed by someone at FB, Inc., who would have been aware of the nature of the documents, before the envelope was re-sealed by tape and returned. Contrary to what was stated on the sticker, FB, Inc. could have easily forwarded the materials to what was later determined to be the correct address for service, namely, the Menlo Park, California address, an address that was already on the Action, but they failed to do so.
[40] Also, pursuant to r. 16.03(6), being an extra-provincial corporation, the plaintiff served FB, Inc. by mailing a copy of the Action to FB, Inc.’s attorney. Since the materials sent to the Toronto, Ontario address were not returned, it was reasonable to assume service was achieved. In any event, the plaintiff asserts that service of all documents was eventually confirmed and acknowledged by Mr. Lu who, together with Miranda Spence, were later discovered by the plaintiff to be counsel for FB, Inc. in Ontario. The plaintiff notes however that in the email sent to her by Mr. Lu the night before the hearing of the motion, he only mentioned that he represented FB Canada but not FB, Inc. and that he had received the Action but said nothing about the Service Motion. It was only after reviewing his affidavit, sworn September 28, 2021, did the plaintiff learn that Mr. Lu also represents FB, Inc. and that he had been given a copy of the Service Motion a couple days before the hearing. This meant that Mr. Lu either had access to materials served through the Report Post Portal or was provided these documents by the legal department at the Menlo Park, California address. Accordingly, the plaintiff’s position is that since Mr. Lu had the materials and was counsel for FB, Inc., the corporation therefore had been properly served with the Action on March 3, 2021, and the Service Motion on June 11, 2021.
[41] The plaintiff submits that pursuant to r. 18.01, FB, Inc. was in default when they failed to file a Statement of Defence within 20 days after being served with the Action in Ontario, or 40 days, after being served in the United States. Despite the default status, the plaintiff still served FB, Inc. with the Service Motion through the Electronic Document Exchange prior to the scheduled hearing date.
[42] The plaintiff argues in the alternative, that even if FB, Inc. was not properly served, this happened only because FB, Inc.’s website and platforms made it impractical to do so promptly. As a result, and despite FB, Inc.’s best efforts to avoid service, including by FB, Inc.’s counsel in Ontario and their counterparts in the legal department at the Menlo Park, California address, FB, Inc. was obligated to attend the hearing since counsel for FB, Inc. had obviously received the materials and were sufficiently aware of the motion on June 17, 2021. On that basis because counsel for FB. Inc, failed to attend court, the motion judge had ample authority to hear the motion seeking to validate service (r. 16.08), or substituting service or dispensing with service (r. 16.04) of the Action.
[43] During the hearing, the plaintiff advised the motion judge that she received a letter sent from Mr. Lu that previous night directing her to send the originating documents to the Menlo Park, California address. Despite what Mr. Lu said, the plaintiff reminds me that it was the motion judge who instructed her to prepare a draft order that addressed her concerns regarding this matter including taking down the impugned posts. Based on what the motion judge told her during the hearing, she believed that not only was she not required to notify FB, Inc. about the next court date, but FB, Inc. could also be served with the order in the same manner as she had with the other materials, which she ultimately did.
[44] In sum, the plaintiff submits that despite properly serving FB, Inc. with all materials, they deliberately chose not to attend, even though they were obligated to do so, and therefore the June 24 Order ought not to be set aside.
[45] In contrast, FB, Inc.’s position is that they were never properly served with the Action, are not in default, and were also not properly served with the Service Motion. Accordingly, the June 24 Order was made without notice and based on this and other factors, the order should be set aside.
[46] While the plaintiff did a commendable job attempting to argue her position on this issue, her understanding of what constitutes proper service is not correct in law. As a result, I will attempt to address several points made by the plaintiff to explain why I find that she failed to properly serve FB, Inc. with both the Action and the Service Motion.
[47] There is simply no evidence that the Report Post Portal used by the plaintiff to serve FB, Inc. with the Action on March 3, 2018, and the Service Motion on June 11, 2022, was designed to connect users to FB, Inc.’s legal department at its Menlo Park, California address. Further, the Report Post Portal was also not intended to be used to accept service of originating process or any other legal materials, let alone to act as an Electronic Document Exchange for that purpose. In fact, in response to the Defamation Report on September 3, 2018, FB, Inc. sent the plaintiff two similarly worded reply emails via the Report Post Portal on September 3 and 4, 2018, the later of which advised her of the following:
…Please note that this channel is only for reports of alleged violations of your legal rights. If you filed that type of report, no further action is necessary. However, if you contacted us through this channel about another matter, you might not receive a response. For Help with matters other than a violation of your legal rights, you may want to search the Help Center for more assistance … (Affidavit of Stephanie Braet, Exhibit “B”, sworn June 11, 2021).
[48] As clearly stated by FB, Inc., the Report Post Portal is only to be used to report alleged violations of the user’s rights and not for other matters, such as, presumably, for the purpose of serving FB, Inc. with originating process or other legal documents. This is likely the reason why the plaintiff did not receive a reply after she used the Report Post Portal in an attempt to serve her materials on FB, Inc.
[49] The plaintiff followed-up service through the Post Report Portal by mailing a copy of the Action to FB, Inc. at the Palo Alto, California and Toronto, Ontario addresses. The motion judge had no evidence before him with respect to why the plaintiff chose to serve FB, Inc. using these two addresses. Interestingly, while the Menlo Park, California address was one of two addresses on the Action (no reference was made to the Toronto, Ontario address), the plaintiff only attempted to serve FB, Inc. in the United States at the Palo Alto, California address. In her affidavits, the plaintiff does not explain why she only mailed the Action to FB, Inc. at the Palo Alto, California and Toronto, Ontario addresses, and not the Menlo Park, California address, which turned out to be the address that she was later told by Mr. Lu to use for service.
[50] In any event, the plaintiff waited over 40 days before using the Report Post Portal to serve the Service Motion. On this occasion, the plaintiff did not follow-up by sending a copy of the Service Motion to FB, Inc. by regular mail or through other means.
[51] Shortly before the Service Motion was heard, the plaintiff received a letter by email from Mr. Lu that clearly set out the following:
a. FB Canada is his client;
b. FB Canada had received copies of the Action;
c. FB Canada is a legal and distinct entity from FB, Inc.;
d. FB Canada does not host, operate, or control FB Services;
e. For users in Canada, the FB Services is operated and hosted by FB, Inc.;
f. FB Canada is not a party to the Action brought by the plaintiff and the documents pertaining to the Action appears to have been sent to FB Canada in error;
g. Mr. Lu is not authorized to receive service on behalf of any FB entities;
h. To the extent the documents in relation to the legal proceedings were meant for FB, Inc., they must instead be sent to FB, Inc., Attn: Legal Department, at the Menlo Park, California address.
[52] Based on the evidence, I find that FB, Inc. was not properly served with the Action or the Service Motion before the June 11, 2021 hearing or the June 24 Order. As noted above, even assuming FB Canada was served, that entity was not involved in the proceedings nor was Mr. Lu, at the time, representing FB, Inc. or instructed and able to accept service on behalf of FB, Inc. The fact that Mr. Lu and Ms. Spence were aware of and somehow obtained physical or digital possession of the materials and then later retained to represent Facebook, Inc. in relation to these proceedings, does not mean that the plaintiff had legally and properly served FB, Inc. before the hearing on the Service Motion. There is insufficient evidence that FB, Inc. evaded service or that it was impractical for the plaintiff to effect service of the originating process or the motion materials promptly and I find that FB, Inc. is not in default. I also find that counsel for FB, Inc. acted appropriately throughout these proceedings and that it is pure speculation and conjecture for the plaintiff to assert otherwise.
[53] While I commend the plaintiff for advising the motion judge of Mr. Lu’s email and I appreciate that she was directed thereafter to draft the June 24 Order, this does not change the fact that FB, Inc. was not properly served, and therefore had no legal obligation to attend the hearing. As a courtesy only, Mr. Lu reached out to assist the plaintiff by instructing her to serve FB, Inc. at the Menlo Park, California address. Again, while I credit the plaintiff for bringing this to the attention of the motion judge, instead of proceeding with the hearing, the plaintiff ought to have adjourned the Service Motion in order to properly serve FB, Inc. at the Menlo Park, California address, which she ultimately did with the June 24 Order. Adjourning the matter and ensuring that FB, Inc. was properly served and able to attend the hearing was particularly important because the June 24 Order went well beyond the subject matter of the Service Motion to include other very intrusive
orders, namely, the Norwich, Take-Down, and Refraining Orders, all of which again were granted without notice to FB, Inc.
[54] In sum, and for all the above reasons, I am satisfied that the June 24 Order was granted without proper notice to FB, Inc.
c. Has FB, Inc. moved forthwith to set aside or vary the June 24 Order after the order came to its attention?
[55] Within the context of r. 37.14(1)(1), forthwith means “without unreasonable delay considering the object of the rule and the circumstances of the case”: see 413554 Ontario Ltd. v. Pine Valley Developments, 2011 ONSC 6193 at para. 14; Paul M. Perrell & John W. Morden, The Law of Civil Procedure in Ontario, 1st ed. (Markham: LexisNexis Canada, 2010) at p. 714.
[56] While the plaintiff complains generally about delays caused by FB, Inc.’s Motion to Set Aside, I do not understand her position to be that FB, Inc. did not attempt to schedule that hearing date in a timely manner. In any event, it is clear in the circumstances of this case, that FB, Inc. attempted to set the first available date for the Motion to Set Aside without unreasonable delay based on the following timeline:
a. On July 13, 2021, the plaintiff received a signed copy of the June 24 Order.
b. On July 19, 2021, Mr. Lu acknowledged receipt of the June 24 Order.
c. On August 3, 2021, Ms. Spence advised the plaintiff that her client, Facebook, Inc., will be bringing a motion to set aside the June 24 Order.
d. The Motion to Set Aside was originally returnable on September 30, 2021, but due to that date being a new national holiday, Ms. Spence was advised on September 17, 2021, that all matters were to be administratively adjourned to October 7, 2021.
e. Ms. Spence was not available October 7, 2021, nor was the plaintiff available on the next date offered, October 14, 2021, so on consent, the matter was adjourned to November 25, 2021 for a hearing.
f. Through no fault of FB, Inc., the Motion to Set Aside was ultimately heard on June 8 and October 31, 2022.
[57] As FB, Inc. acted promptly and scheduled the Motion to Set Aside within approximately six weeks of the June 24 Order coming to their attention, I find that this part of the test under r. 37.14 has also been satisfied.
a. Was the initial Order correct and has there been a change of material facts after considering that the ultimate purpose is to prevent unfairness or a miscarriage of justice?
i. The Service Orders
[58] Although still maintaining that the Action and the Service Motion were not properly served, it is not FB, Inc.’s request to set aside paras. 1 and 2 of the June 24 Order, which deal with service of these materials. Consistent with that position, FB, Inc. filed their Statement of Defence on February 4, 2022.
[59] Accordingly, FB, Inc. does not seek to set aside the orders related to service of the plaintiff’s materials and therefore this issue is now moot.
ii. The Norwich Order
[60] The plaintiff submits that because Mr. Ramputh and others posted and reposted content that constituted defamation, copyright infringement, and cyber bullying/harassment on FB Services, she required the Norwich Order to compel FB, Inc. to “identify, preserve, and disclose electronic URL metadata evidence” to assist her with the lawsuit. The Norwich Order includes the following at para. 3 of the June 24 Order:
The electronic chain of URL link activity and records of Publishers and Commentators, and created by and modified by date and time stamps, and time stamps of modification of libel for limited audience, and or self-total deletion with records of date stamp, of the Prima Facie Defamatory Libel and Copyright Publications, of the seven Defendant’s; as legally described in Schedule “A” hereto follows in paragraph three The Plaintiff’s reference for four of the preserved metadate URL s from Defendant JENS CHRISTIAN MR. RAMPUTH…and the FIVE unknown URL metadata…as legal described in Schedule “A”.
[61] The plaintiff asserts that the order is clear and understandable and that the information FB, Inc. was ordered to disclose about the wrongdoers, such as their name, dates and time stamps of posts or reposts, I.P. subscription addresses etc., is not private and if released, would not be contrary to FB, Inc.’s internal policies. This information is important to the plaintiff as the unlawful materials had been posted and reposted and has spread to perhaps thousands of people, none of whom contacted the plaintiff to fact check the information. As a result, FB, Inc., has an obligation to the plaintiff, as a harmed party, to trace and preserve that evidence and assist her in these legal proceedings by identifying those responsible.
[62] FB, Inc. argues that a Norwich order is an extraordinary remedy. By requesting this order, the plaintiff not only is required to establish a strong evidentiary basis in support of that relief, but if the motion is made without notice, it is then incumbent on the plaintiff to place squarely before the issuing justice a full and fair disclosure of all material facts: see r. 39.01(6). If the plaintiff fails to comply with the rule, as occurred in this case, this alone provides sufficient grounds to justify setting aside the order. Further, the June 24 Order does not comply with FB, Inc. internal policies regarding user information and is so confusing, overbroad, imprecise, and replete with typographical errors that FB, Inc., is not able to comply with it.
[63] The Court of Appeal for Ontario in GEA Group AG v. Ventra Group Co., 2009 ONCA 619, 96 O.R. (3d) 481 (“GEA Group”), adopted the test set out by Mason J. in Alberta (Treasury Branches) v. Leahy, 2000 ABQB 575, 270 A.R. 1, aff’d 2002 ABCA 101, [2002] A.J. No. 524, leave to appeal refused [2002] S.C.C.A. No. 235 regarding the factors the court will consider on an application for Norwich relief. The test is as follows at paras. 50-51:
(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, some [authorities] refer to the associated expenses of complying with the orders, while others speak of damages; and
(v) Whether the interests of justice favour the obtaining of the disclosure.
[64] In GEA Group, the court held that a Norwich order is a “rare” and “…an intrusive and extraordinary remedy that must be exercised with caution”: see paras. 85 and 104.
[65] After considering the test set out in GEA Group, it is apparent based on the first factor alone, that the Norwich Order cannot stand and ought to be set aside. I agree with FB, Inc. that the plaintiff placed insufficient evidence before the motion judge, on the Service Motion to raise a valid, bona-fide or reasonable claim for defamation, copyright infringement, and cyber bullying/harassment to justify Norwich relief.
[66] With respect to defamation, in accordance with the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 28-29, the plaintiff must demonstrate that the statement at issue:
a. Is defamatory, in the sense that it would tend to lower the plaintiff’s reputation in the eyes of reasonable person;
b. In fact referred to the plaintiff; and
c. Was published, meaning that it was communicated to at least one person other than the plaintiff.
[67] If these elements are established on a balance of probabilities, the onus then shifts to the defendant to advance a defence.
[68] Other than the plaintiff’s affidavit, sworn in support of the Service Motion, and certain attached exhibits, one which contained a copy of the Defamation Report she sent through the Post Report Portal as well as another exhibit that had the raw URL links of the impugned posts, the motion judge had no other evidence, including the actual posts, that supported a Norwich Order. In the Defamation Report, the plaintiff reported:
This man is slandering, writing hate speech, false blaming, lying and abuse of Facebook policies and procedures!! Please delete these posts and this man Jens Mr. Ramputh’s Facebook Account. He is violating the rights of face book by putting Stephanie Braet, STEF BARRETT in comparison to criminals and well as defacing a public image and damaging work income and emotions damage to Stephanie Braet aka Stef Barrett (Affidavit of Stephanie Braet, Exhibit “D”, sworn June 11, 2021).
[69] It was certainly not clear to FB, Inc. that the plaintiff’s Defamation Report had sufficient evidence to establish a valid, bona-fide or reasonable claim for defamation, copyright infringement or cyber bullying/harassment. This is particularly so when the Defamation Report was used to support a motion, made without notice, requesting relief that did not even include a Norwich Order.
[70] Further, I have reviewed the plaintiff’s subsequent affidavits, including those sworn in support of the plaintiff’s Contempt Motion and Motion to Examine, but I was unable to find any material change in circumstances or additional evidence that would have, after-the-fact, justified the Norwich Order. For instance, the plaintiff filed an affidavit sworn December 30, 2021, in support of her Contempt Motion which contained the following evidence:
a. September 3, 2018 was the discovery date of the first set of Libel, Copyright Infringement, and mass Cyber bullying via FACEBOOK, INC posts attacking the plaintiff’s character and reputation, including highlighting work employment and living location….
b. …This cyber bullying and libel to continually be publicly and privately published, which continued to damage the plaintiff emotionally, and physically.
c. On September 3, 2020, the Plaintiff still suffering from damages of the publications on facebook, INC…
[71] The plaintiff’s affidavits contain bald and conclusory evidentiary statements without the necessary context, foundation, or details to substantiate the defamation claim or, for that matter, any of the other claims. For instance, based on the evidentiary record before me, I am unable to assess the plaintiff’s reputation in the community or whether the impugned posts would tend to lower or harm the plaintiff’s reputation in the eyes of a reasonable person. As a result, I am unable to determine in this evidentiary vacuum whether the impugned posts are defamatory, let alone prima facie defamatory.
[72] While the plaintiff’s pleadings provide greater detail and context regarding her claims, Howard J.’s endorsement after the case conference on November 25, 2021 specifically dealt with this issue when he noted that “[t]he plaintiff needs to bear in mind that her [pleadings] does not constitute either evidence or argument.” Further, the plaintiff failed to provide the motion judge with full and frank disclosure of all material facts when requesting Norwich relief including, importantly, the circumstance that may have prompted Mr. Ramputh to publish the impugned posts (i.e. although not in evidence, it is anticipated that Mr. Ramputh will claim that the plaintiff allegedly sent an image she secretly took of him while laying next to her in bed, without his consent, to various women he knew on FB – see: Copy of the June 24 Order, posts from Mr. Ramputh on September 3, 2018).
[73] The plaintiff also failed to substantiate her claim against FB, Inc. for copyright infringement by failing to identify any specific pieces of content that allegedly infringed such copyright. Nor has the plaintiff provided sufficient evidence regarding her claim of cyber bullying/harassment to satisfy me that “the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm”: see Caplan v. Atas, 2021 ONSC 670, at para. 171. Further on the issue of cyber bullying/harassment as well as in relation to damages, all I know from the plaintiff’s affidavit material is her bald claims that the posts and reposts continue to “damage the plaintiff emotionally, and physically” (plaintiff’s affidavit, sworn December 30, 2021) and that it caused her “work income and emotions damage” (Defamation Report). Again, the plaintiff has provided insufficient evidence to substantiate in any material way the alleged monetary losses or purported harm that she may have suffered from the impugned posts.
[74] In addition to unsubstantiated claims, in his affidavit, sworn on September 28, 2021, Mr. Lu deposed that the Norwich Order’s wording is also so “confusing and overbroad” that FB, Inc. is not able comply with it – and I agree. On the issue of whether the order is confusing, while I understand the plaintiff’s request for the “electronic chain of URL link activity” … “of Publisher and Commentators”, I fail to understand or, more importantly, FB, Inc. would fail to understand the request for “time stamps of modification of libel for limited audience, and or self-total deletion and records of time stamp, of the Prima Facie Defamatory Libel and Copyright Publications, of the seven Defendant’s…” - in order to comply with that part of the order.
[75] A court order, especially one that seeks the disclosure of potentially private and sensitive user information from a large corporation such as FB, Inc., must be clear, concise, and as narrow in scope as possible to achieve its specific purpose – which the June 24 Order clearly does not do.
iii. Take-Down Order and Refraining Order
[76] The arguments used for Norwich relief are similar to those raised by the plaintiff to justify the Take-Down Order, namely, that Mr. Ramputh and others posted and reposted materials about her on FB Services that constituted defamation, copyright infringement, and cyber bullying/harassment. As a result, the Take-Down Order by the motion judge was required to compel FB, Inc. to remove, pursuant to para. 4 of the Order, “the Prima Facie Defamatory Libel and Copyright URL Publication links on the seven Defendant’s social media platform…”
[77] In para. 5, the Order also compelled Facebook, Inc.:
…to identify, and remove, unknown individuals or individual(s) associated by unknown additional Re-Publication(s) of known Prima Facie Defamatory Libel and Copyright Publications; legally described in Schedule “A”; and to preserve and identify metadata of such URL links of unknown Re-Publication(s) I.P. Subscription Addresses; which, include: create by and modified by date and time stamps of URL Publications, include records of chain of activities to modify for limited audience, and or self deletion with date stamp, and subscriber URL http://www.facebook.com/addresses of unknown Publishers registered via Facebook, Inc Social Media.
[78] The plaintiff asserts that the Take-Down Order is clear and understandable and that FB, Inc. has an obligation to the plaintiff, as the harmed party, to take the illegal materials down. In fact, at the Service Motion, it was the motion judge who initially raised the issue of removing the impugned posts and then directed the plaintiff to draft an Order for same the following week.
[79] In addition to the Take-Down relief, the June 24 Order also refrains “the seven Defendants from any Publications in a derogatory manner such as written commentary referring to the Plaintiff, “Stephanie” and or “STEPHANIE BRAET”, and or photos identifying the Plaintiff in copyright of the Plaintiff’s photography, or the Plaintiff’s name, and or place of residence and employment be prohibited.” Although it is unclear, I presume FB, Inc. would be responsible to assist the plaintiff with respect to enforcing this part of the Order.
[80] Similar to the Norwich Order, I find that the Take-Down and Refraining Orders ought not to have been granted for the following reasons: (1) the Take-Down and Refraining Orders were granted without notice to the FB, Inc., (2) the plaintiff failed to make full and frank disclosure of all material facts on the motion that resulted in the Take-Down and Refraining Orders, (3) the Service Motion did not include a Take-Down or a Refraining Order, (4) the claims made and damages sought in relation to the orders are bald, conclusory and unsubstantiated, and (5) the orders are overbroad (i.e. the refraining order, refrains the defendants from publishing any derogatory comments referring to “the Plaintiff”, “Stephanie” and or “Stephanie Braet”) and so confusing (i.e. the Take Down Order compels FB, Inc. “to preserve and identify metadata… [that] include records of chain of
activities to modify for limited audience, and or self deletion with date stamp”) that FB, Inc. is unable to comply.
b. Countervailing considerations including prejudice to the plaintiff if the Order were to be set aside.
[81] While not argued by the plaintiff, I will analyse the circumstances of the proceedings to determine whether any countervailing consideration existed including prejudice that may be suffered by the plaintiff, including from delay, if the June 24 Order is set aside.
[82] On the issue of delay, once the June 24 Order was discovered, FB, Inc. promptly filed the Motion to Set Aside and a hearing date was scheduled as soon as reasonably possible. As a result, the plaintiff adequately explained the reasons for the short delay occasioned by the motion.
[83] Other than being disappointed by the decision, I find no countervailing considerations or prejudice associated with setting aside the June 24 Order. If anything, because FB, Inc. no longer seeks to set aside those parts of the June 24 Order that deal with service, the plaintiff’s setback at this stage of the proceedings has been mitigated.
[84] Further, the Action remains alive, and the plaintiff is free to continue with the lawsuit and pursue her remedies against the defendants in court.
Contempt Motion
[85] Based on findings that underlie my decision to set aside the Norwich, Take-Down and Refraining Orders, including that (1) the Action and Service Motion were not properly served on FB, Inc., (2) counsel for FB, Inc. did not act inappropriately during the legal proceedings, and (3) FB, Inc. is no longer seeking to set aside service of the Action, which appears to be the reason why the plaintiff requested the “logs of emails”, including the I.P. email address for the Report Post Portal as sought in para. 4 of the motion – I order that the Contempt Motion be dismissed in its entirety.
Motion to Examine
[86] Although only limited submissions were received from counsel, including the plaintiff, on the Motion to Examine, after reviewing the Notice of Motion and supporting materials and based again on my findings that underlie the decision to set aside the Norwich, Take-Down and Refraining Orders, I am satisfied that there is no basis for the plaintiff to (1) examine counsel for FB, Inc., (2) compel FB, Inc. to provide the sought-after documents or (3) summons any witnesses on this issue. Accordingly, I order that this motion be dismissed.
D. CONCLUSION
[87] For all the reasons noted above:
a. I find that the June 24 Order ought not to have been granted and to prevent a miscarriage of justice, I order that it be set aside.
b. Further, I order that the Contempt Motion and the Motion to Examine be dismissed.
c. Finally, I direct the plaintiff and counsel for FB, Inc. to contact the trial coordinator within 10 days of the date of this ruling and schedule a case conference at the earliest convenient date for both parties. The estimated time for the case conference is one hour.
E. COSTS
[88] While FB, Inc. is clearly the more successful party and, based on all factors, the party entitled to the costs of the motion, my overriding concern at this time is that if I award what potentially may have been significant costs against the plaintiff, this could have the effect of seriously undermining her ability to access justice in the future on this matter. While the evidence is scant in relation to her ability to pay costs, my concerns, based on the circumstances, extend beyond that issue and I am reluctant at this early stage to potentially overwhelm the plaintiff as this matter proceeds through the court system. With that said, I believe that costs still play a role in this case. Accordingly, I find that the issue of costs ought to be dealt with now rather than later so as not to distract the plaintiff and I exercise my discretion by awarding costs against the plaintiff, Stephanie Braet, in the amount of $500, inclusive of HST and disbursements, to be paid within 60 days. Of course, any subsequent motions filed by the plaintiff that have little to no merit or are otherwise unsuccessful, may attract significant cost consequences.
Brian D. Dubé - Justice
Released: November 28, 2022
Amended released: May 4, 2023
AMENDMENT
In paras 21, 24, 25, 26, 42, 43, 49, 53, 65, 69, 72, 76 and 78, the words “Desotti J.” have been changed to “the motion judge”.
COURT FILE NO.: CV-20-124 (Sarnia)
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephanie Braet
Plaintiff
– and –
Jens Christian Ramputh, Facebook, Inc., The Olde Angel Inn, Pat Darte, Heather Harvey, James Anthony Ramputh and Kateryna Melnyk
Defendants
amended Ruling on Motion
Dubé J.
Released: November 28, 2022
Amended released: May 4, 2023