Court File and Parties

COURT FILE NO. CV-24-715425

DATE: 2024-02-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOHN DOE AND JANE DOE, plaintiffs

-and-

OLIVIA WHITFORD, defendant

BEFORE: FL Myers J

COUNSEL: Matthew Sokolsky, for the plaintiffs

Alex Van Kralingen and Behzad Hassibi, for the defendant

HEARD: February 27, 2024

Endorsement

[1] In a different lawsuit, Olivia Whitford sues her former employer for wrongful dismissal. She also claims relief under the whistleblower and anti-reprisal provisions of the Securities Act, RSO 1990, c S,5.

[2] The anonymous plaintiffs in this action move for an urgent order prohibiting Ms. Whitford from disclosing to her former employer in the other litigation certain text messages that they exchanged with her at and around the time of the events that led to her dismissal from her employment.

[3] This action is dismissed because:

a. the plaintiffs improperly commenced the action using pseudonyms without leave being sought or obtained;

b. the plaintiffs assert no cause of action against Ms. Whitford that could entitle them to an order prohibiting her from making disclosure as required by law in her separate lawsuit;

c. the plaintiffs have no standing on the issue of disclosure of documents in Ms. Whitford’s possession in a separate lawsuit;

d. the court has no authority in this action to make decisions as to the relevancy of documents in another lawsuit whether for discovery or trial purposes as asked; and

e. the plaintiffs have not provided notice of this motion to the former employer defendant in the other lawsuit despite its obvious and significant interest in the scope of disclosure of documents to be made to it in its lawsuit.

[4] The purpose of this action is to keep the plaintiffs’ text messages from becoming known to Ms. Whitford’s former employer in Ms. Whitford’s other lawsuit. While perhaps not a reason to dismiss this claim yet, I have a very real concern that the plaintiffs’ law firm in this action acted previously as counsel to the former employer in the other lawsuit. I am most reluctant to countenance a claim by counsel seemingly against the interests of their former client in the very matter in which they previously acted for it.

[5] The plaintiffs did not seek an order sealing the court file or their evidence. They would have had to give notice to the press and probably some form of redacted notice to the former employer in the other action had they done so. While I am sensitive to the plaintiffs’ concern for embarrassment, prima facie, there is little likelihood that they could establish that there is a public interest in sealing this file as required by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25.

Use of Pseudonyms

[6] Parties can seek leave to commence an action using a pseudonym under Rule 37.17 in sufficiently urgent circumstances. The more usual practice is to start the claim in their legal names and then move immediately, without notice, to seal the originating process and replace it with an anonymized version on the public record.

[7] But what one cannot do is to purport to start an action in pseudonyms, submit affidavits in the parties’ legal names, but only send the affidavits to the Registrar without filing them in the court’s file. This is what the plaintiffs have done on this motion.

[8] Originating processes require parties’ legal names to establish that they are real people who are sui juris. Moreover other identifying biographical details are needed like an address for service.

[9] Starting a claim in a pseudonym and then trying to submit evidence outside the court filing process is circumventing the Rules and the open courts principle. A party does not have the right to create her own de facto sealing order by ignoring the court’s processes and the applicable law.

[10] The Registrar is directed to ensure that the plaintiffs’ notice of action and motion record are filed in the court’s public file unless or until the plaintiffs obtain an order sealing some or all of it.

Disclosure Obligations in a Different Lawsuit

[11] I do not want to say too much about the subject text messages. Counsel for Ms. Whitford has determined that they are producible in her other action. The plaintiffs ask me to find that their text message exchanges with Ms. Whitford are not relevant or producible in Ms. Whitford’s other litigation despite her counsel’s determination.

[12] There is no applicable cause of action to affect discovery under the Rules of Civil Procedure in another lawsuit. Mr. Sokolsky was unable to name a known cause of action that entitles the plaintiffs to sue Ms. Whitford to seek the relief claimed. The equitable duty of confidence does not lie on these facts. Neither is it tortious to comply with one’s disclosure obligations as required by law.

[13] What the plaintiffs seek is a disclosure decision under Rule 30 in the other litigation. But they have started a new lawsuit to try to prevent Ms. Whitford’s former employer from knowing about the ruling being sought in its own litigation.

[14] Counsel submits that this is a unique situation in which the relief sought will be moot if the former employer learns about it. If that was the only issue, a redacted form of notice could well have been provided on a motion in the other litigation. The issue of notice could have been dealt with as it often is in cases with all manner of confidentiality sensitivities.

[15] But notice of a motion is not the only issue. The plaintiffs have no standing to bring a motion in other peoples’ litigation concerning the scope of documentary discovery required by law. Counsel provided no law suggesting otherwise.

[16] The plaintiffs submit that their text messages include irrelevant comments, gifs, emojis, and colorful language that have no place in a formal legal proceeding. They ask me to find that the text messages were private discussions among friends. That may all be true. But it has nothing to do with whether the text messages are subject to disclosure in the other lawsuit.

[17] The plaintiffs swear that their text messages are irrelevant to the other litigation. They are not lawyers and have no basis to make such a determination of law or mixed fact and law in their affidavits.

[18] The process of document disclosure under the Rules of Civil Procedure relies upon the integrity and professionalism of counsel to the parties as officers of the court to make relevancy determinations. Mr. Van Kralingen submits that while Ms. Whitford does not oppose the relief sought, she is obliged to produce the relevant text messages. He took me through some of the pleadings in the other action to show why the text messages are relevant. However, I decline to make that determination or to second-guess counsel in this proceeding.

[19] The real gravamen of the plaintiffs’ complaint is that the plaintiffs swear they will be seriously prejudiced if Ms. Whitford’s former employer sees their exchanges with her. I do not doubt that. I have read the text messages.

[20] Mr. Sokolsky submits that despite Ms. Whitford’s counsel’s view, I can and should determine that the prejudice to the plaintiffs would outweigh the probative value of disclosure of the text messages. He offers no law that allows a court to balance prejudice to third parties against probative value to the issues in litigation as a component of the documentary discovery obligations of the parties.

[21] Moreover, weighing prejudice versus probative value is a test for admissibility at trial not disclosure on discovery. I agree with Mr. Van Kralingen that discovery obligations are broader than admissibility at trial. This allows the parties to understand the issues better and to have more meaningful dialogue.

[22] Mr. Sokolsky also submits that in the plaintiffs’ view Ms. Whitford’s former employer will not want the text messages disclosed. Ignoring that Ms. Whitford’s counsel submits that they are relevant to issues pleaded by the former employer, on what basis do the plaintiffs get to decide the position for Ms. Whitford’s former employer? That is about as self-interested a submission as one could make.

[23] If the plaintiffs are ever put on a witness stand in the other lawsuit, they can say all the things that they have sworn in this motion to minimize their embarrassment. They can say they were just talking to a friend who was in a difficult situation. They tried to help diffuse her anxiety. The messages were private and were not meant for anyone else’s eyes or ears. All of this may go to the weight of the evidence in that trial. But it has no bearing on documentary discovery.

[24] Mr. Sokolsky agreed with me that had the contents of the text messages been conveyed orally in conversations rather than in text messages, there would be no basis to preclude Ms. Whitford from giving evidence on discovery or trial about conversations that she held assuming they were admissible.

[25] The worst part of the plaintiffs’ embarrassment is that instead of chatting orally, they wrote their words down in a form that they now regret. I would have thought that people understood by now that they may be held accountable for what they write in text messages or other social media.

[26] People know or should know that whatever they write today may end up on the front page of tomorrow’s Toronto Star or go viral on Facebook or X.

[27] Even if the plaintiffs had standing to intervene in others’ litigation, the fact that they may be embarrassed is not a basis to prevent disclosure of relevant documents. In my experience, some of the most cogent evidence disclosed on discovery involves a fair degree of embarrassment or prejudice to someone. Lack of formality, loose or crude language, and the use of gifs and emojis may provide valuable context and clues to the thought processes of the writers unfiltered by formal office protocols. The weight to be provided to the contents is for the trier of fact.

[28] It may be that the plaintiffs will be embarrassed and/or prejudiced if their words are made known to Ms. Whitford’s former employer. They may indeed be held accountable for what they have written. But Mr. Sokolsky was not able to provide any legal basis for the court to intervene in the discovery process in another lawsuit to protect the plaintiffs from the potential consequences of their chosen words or format. I know of none. Certainly the manner in which this motion was advanced cannot result in the relief that the plaintiffs seek.

[29] This action has no continued purpose once this decision is made. The text messages will be disclosed in the other action. Therefore, this action is dismissed.

FL Myers J

Date: February 27, 2024