COURT FILE NO.: CV-22-00675656
DATE: 20220204
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Obsidian Group Inc., Moving party
– AND –
Google LLC, John Doe, Jane Doe, Responding parties
BEFORE: Justice E.M. Morgan
COUNSEL: Daniel Ciarabellini, for the Moving Party
HEARD: February 4, 2022
PRE-cLAIM INJUNCTION
[1] The Moving Party, Obsidian Group Inc. (“Obsidian”), brings a motion for an interim injunction removing certain messages about it posted on Google Review. It also seeks a Norwich Order in an effort to determine who has posted the impugned messages.
[2] The motion is brought under Rule 37.17 of the Rules of Civil Procedure prior to the commencement of a claim. No Notice of Action or Statement of Claim has been issued. Obsidian has, however, provided an undertaking that with the granting of the within Order a Statement of Claim will be issued forthwith. It has also provided the usual undertaking for damages in support of its injunction request.
[3] Although, as discussed further below, the motion has been brought on notice to the Respondent, Google LLC (“Google”), no one has appeared in response to the motion.
[4] The affidavits filed in the Motion Record demonstrate that Obsidian has strong grounds for suspecting that the message are fake reviews of its business. Obsidian runs a hotel and has no record of anyone with the names of the supposed reviewers ever staying there as guests. The reviews are unusually critical of the hotel’s service and cleanliness.
[5] What’s more, the posted messages reference disputes with contractors and money owing by the hotel to contractors that suggest that it may be one of those contractors that is posting them under fabricated names. Obsidian has approached a suspected contractor to ask whether they know anything about the reviews and, according to Obsidian’s deponent, the answers are rather suspicious. In fact, the contractor appears to have gone so far as to say that they have nothing to do with the Google Review postings, but for a fee they may be able to get the person who posted them to take them down.
[6] The supporting affidavits filed in the motion depose that the negative reviews are causing continuous damage to its hotel business. Given the content of the impugned messages, that would not surprise anyone. They are not only very different from the overall positive reviews posted about Obsidian’s hotel prior to the two postings at issue, but they seem designed to discourage people from ever booking a room at the hotel.
[7] A reader of these reviews would not have to read between the lines to get the message that one should stay away from this hotel; they state such things as “the rooms stink:, “they are not clean”, “there was a stain on the bedsheet”, etc. According to statistics that are available upon a search of Google Review, the impugned messages have been accessed several thousand times since they were first posted roughly a month ago.
[8] On the basis of the record before me, I would not hesitate in granting the Order sought. My one concern, however, is with the way that the motion has been brought and, in particular, whether the notice to Google has been adequate.
[9] The motion was originally brought on a without notice basis. In a short endorsement dated January 24, 2022, Myers J. adjourned the matter so that it could be brought on notice to Google. That same day, counsel for Obsidian emailed the Civil Practice Court (“CPC”) attendance requisition form to the court office and, in addition, emailed Google the CPC form and all of the motion materials.
[10] Obsidian’s counsel submits that Google did not have to be personally served with the motion materials, and that service by email is authorized under the Rules for this motion. He points out that Rule 16.01(1) requires personal service or alternative service (for which service by email would not suffice) for an originating process only, and that Rule 16.01(3) specifically states that “[n]o other document need be served personally, or by an alternative to personal service”. He goes on to point out that Rule 16.01(3)(iv) specifically authorizes service by email of any non-originating process on parties who do not have counsel of record.
[11] Having noted the provisions for service, Obsidian’s counsel submits that a motion under Rule 37.17 does not fall under the definition of “originating process”. He states that under Rule 14.03, originating process is the means by which an action or application is commenced – generally speaking, by Notice of Action or Statement of Claim if the matter is an action, or Notice of Application if the matter is an application. A motion under Rule 37.17, by contrast, does not involve any such “originating process”. Indeed, it could not involve an originating process as defined in Rule 14.03, as Rule 37.17 specifically authorized the motion to be brought “before the commencement of a proceeding”.
[12] Counsel has read this combination of Rules strictly. And he is indeed accurate that the wording of Rule 37.17 technically does not bring the pre-commencement motion into the definition of an originating process. But the Rule 16.01(1) requirement of personal service rather than email or other type of service for an originating process is not a technical requirement; it is an important procedural safeguard that insists that the most reliable form of notice be given to a party when they first learn that a lawsuit or other legal proceeding is being brought against them. It is, at bottom, meant to ensure that legal claims are not brought and remedies are not issued against parties who from the outset did not know about the claim.
[13] A Rule 37.17 pre-claim motion may not, strictly speaking, be a form of “originating process” since it brings a procedural and generally interim or temporary relief, and does not even make a substantive claim. It is not often invoked, but when it is used it will always be the first notice that a respondent receives that there is a legal proceeding to which it is to respond. The rationale for personal service of an originating process applies with equal force to this type of early motion.
[14] If the policy of the Rules in requiring personal service of the first document in a proceeding is to ensure that legal process is not launched against a party behind their back, the requirement of personal service for an originating process should be applied to motions under Rule 37.17. The Rule 37.17 motion record may not be “originating” in the sense that is not where the claim is issued, but it is an initiating missive that demands attention in the same way that a Statement of Claim or Notice of Application does The Rule invoked by Obsidian was designed to facilitate urgent matters for moving parties, but it was not designed to avoid giving procedural fairness to responding parties.
[15] In any case, Obsidian’s counsel did not arrange for personal service on Google at its corporate offices. Rather, he satisfied Justice Myer’s requirement that the motion be brought on notice by emailing Google with the motion materials.
[16] Several days later, on January 26, 2022, the matter came before Dow J. for scheduling in CPC. In a handwritten endorsement, Justice Dow stated that, “Counsel confirmed defendant had been given notice of today’s appearance.” I do not know whether Justice Dow was aware of, or had turned his mind to, the way in which that notice had been given. It is obvious from his comment, however, that Google had not responded to such notice.
[17] In most cases, I would not be satisfied that when Myers J. sent the motion back to Obsidian’s counsel to be brought “on notice”, he meant notice by something other than the personal service required for an originating process. This was, after all, the first missive in this action (or proposed action) that Google, as defendant, would have received. However, Google is an unusual respondent in certain respects, and its uniqueness may impact on the way in which the ambiguity between Rule 16.01 and Rule 37.17 is interpreted.
[18] More specifically, Google is perhaps one of the most frequently named litigation parties anywhere. It is so often the target of legal process – not necessarily because of its own wrongful conduct, but because it can be used as a platform for others’ wrongful conduct – that it dedicates an email address specifically for the public to use for this purpose: internationalcivil@google.com. And it is so often confronted with requests to remove postings that it provides the public with an email address specifically for that purpose: removals@google.com. And, finally, it is so often the recipient of legal correspondence that it provides the public with an email address specifically for that purpose as well: google-legal-support@google.com. It has obviously done a cost-benefit analysis and concluded that it is preferable to be contacted by email rather than by delivery of documents to its corporate offices, including in instances of civil litigation.
[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. Counsel advises that prior to the issuance of the within motion he and his client’s in-house lawyer had, in fact, corresponded with Google via these email addresses, and that they had received substantive responses indicating that the addresses are monitored on a regular basis.
[20] In these circumstances, I am willing to interpret the Rules to allow the notice to Google to have been given by email. My purpose in reviewing the way in which Rules 16.01 and 37.17 work together has been to articulate a policy-oriented interpretation of those Rules, not a technical or formalistic one. In Google’s case, the policy goal is satisfied by giving notice by email to the addresses which it says that the public should use for this purpose. In other cases, and for more typical respondents who do not broadcast to the public how they wish to be served if sued, personal service would seem to be called for with respect to the initial document in a pre-claim motion.
[21] The interim injunction and Norwich Order sought by Obsidian is granted. It will be in force until the new return date of the motion on March 4, 2020, or until further Order of the Court.
[22] There will be an Order to go in the form submitted by counsel and revised by me.
[23] There will be no costs of today’s motion.
[24] This motion is adjourned to March 4, 2020, for two hours. I am not seized.
Date: February 4, 2022 Morgan J.