“ Given the circumstances in this action, the motions judge was therefore required to have regard to the following considerations: (1) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; (2) whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; (3) whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and (4) whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.”
“ While the Charter does not apply to strictly private litigation between litigants not invoking state action, the Divisional Court has held that, because the Rules of Civil Procedure have the force of a statute~ they must be interpreted in a manner consistent with Charter rights and values: see D.P. v. Wagg,  0.1. No. 3808 at paras. 65-66 (Div. Ct.). In that case, the court held that whenever one party to a civil suit invokes or relies upon government action (in that case, the Rules of Civil Procedure; as enforced by the machinery of the administration of justice) to produce what amounts to the infringement of another party’s Charter rights, Charter values are invoked.
 On appeal, Rosenberg l.A., speaking for the Court, was prepared to assume for purposes of that case, that Charter values should moun the discovery process: D.P. v. Wagg (2004), 71 O.R. (3d) 229 at para. 61 (C.A.). However; the appeal was ultimately decided on the principle that the Superior Court has inherent jurisdiction to control the discovery and production process under the Rules of Civil Procedure to ensure that important state and other third party interests; including Charter interests, are protected, even if the particular documents do not, strictly speaking, fall within a recognized category of privilege: see para. 28.
Manner in Which Courts Address the Need to Take Charter Rights into Consideration in Relation to a Request/or Disclosure
 In circumstances where Charter rights are engaged and therefore courts are required to take such interests into consideration in determining whether to order disclosure, the case law indicates that the Charter protected interests are balanced against the public interest in disclosure in the context of the administration of justice by a combination of (1) a requirement of an evidentiary threshold, (2) fulfillment of conditions establishing the necessity of the disclosure sought, and (3) an express weighing of the competing interests in the particular circumstances of the litigation. In order to prevent the abusive use of the litigation process, disclosure cannot be automatic where Charter interests are engaged. On the other hand, to prevent the abusive use of the internet, disclosure also cannot be unreasonably withheld even if Charter interests are engaged.
The Warman v. Wilkins-Fournier decision is like the “Litigation Tail WAGGing the Charter Dog”. The Court of Appeal’s decision in D.P. v. Wagg addressed the principles underlying the obligation placed on the Crown to screen Crown Brief documents prior to use in a collateral proceeding. In D.P. v. Wagg, Justice Rosenberg did in fact state, as Wilton-Siegel, J. pointed out, that for the purposes of the appeal, he was prepared to assume that the Divisional Court was correct that Charter values informed the discovery process. The Court of Appeal, however, also decided that a statement excluded from the criminal proceeding on the basis of a Charter violation was still required to be produced in the related civil proceeding. The analysis of a section 8 violation is different in civil and criminal matters.
So how does the Divisional Court then conclude that D.P. v. Wagg establishes that section 32 of the Charter extends to every individual, including putative defendants, affected by the court’s order and exercise of inherent jurisdiction? If this were so, then the Divisional Court should have simply imposed a notice requirement upon the website/bulletin board owners to notify the anonymous defendants of the nature of the motion. If they chose to oppose the motion, the Divisional Court may have also included a provision that any anonymous defendants remain as such while represented by counsel at the return of the motion. There was no need to invoke the Charter when the parties whose Charter rights are being balanced are not even before the Court to make submissions.