Warman v. Fournier et al.: An Uncompelling Decision on Internet Defamation from the Divisional Court

Yesterday’s decision of the Divisional Court in Warman v. Fournier et al, 2010 ONSC 2126 (per Wilton-Siegel, J., Kent and Heeney, JJ. concurring) reverses the earlier decision of Kershman, J. in Warman v. Wilkins-Fournier, ordering the disclosure of all personal information, including name, email and Internet Protocol (IP) addresses of multiple anonymous posters in a defamation case (see blawg posts by Michael Geist, Matthew NiedDan Michaluk and Simon Fodden).
The Divisional Court established the following test for compelling third party disclosure of the identities of anonymous posters in internet defamation actions:
“[34] 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.”

I have no difficulty with the first three factors, which are functionally equivalent to the test for granting a Norwich Pharmacal Order. The Divisional Court’s Charter analysis under the fourth factor, however, is suspect.

In Justice Wilton-Siegel’s mind, the following is the role of the Court where Charter values are engaged:
“[22] 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, [2002] 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.

[23] 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

[24] 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.

While I appreciate the Divisional Court’s concern to ensure fairness to all parties, any concerns over privacy or freedom of expression are misplaced in the context of a defamation action. There is no such thing as “anonymous free speech”. If you say it, then you own it. Hiding behind the cloak of anonymity under the pretext of an alleged infringement of the anonymous posters’ s.2(b) Charter rights is farcical. Neither of the parties in this action are government actors. The implications of the Divisional Court’s analysis is to put up further barriers for plaintiffs in identifying anonymous posters who intentionally hide behind temporary email addresses or masked IP proxies.

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.

A further appeal is warranted.

6 Responses to “Warman v. Fournier et al.: An Uncompelling Decision on Internet Defamation from the Divisional Court”

  1. Corey D. Steinberg Says:

    I agree with your comments, Antonin. I have clients that have no end of frustration when they are defamed online, only to find obstacle after obstacle in their way just to identify the defamer; let alone pursue them with litigation in what is often a cross-juridictional matter. We end up issuing threats in various provinces and states at once, commencing various dove-tailing litigation, and then having to go to great expense; often amounting to little more than wheel-spinning; and now the courts are helping these defamers. (Of course, the defamer often turns out to be an impecunious rabble-rouser, with little to lose, while the party defamed stands to suffer a huge blow to its reputation, often accompanied by real monetary loss.I like your thoughts, "You say it, you own it." If you want to spout negative comments about someone in public, you should not be hiding behind the Charter to keep yourself anonymous. You couldn't do that if you were screaming from a rooftop,even if you thought you were cloaked in anonymity, and posting online certainly has the potential to reach a much larger group of people.)If you can't yell "fire" in a theatre without owning it, I say you can't bad-mouth others online and deny responsibility. Double-edged sword – and he who draws first-blood…

  2. Anonymous Says:

    Hi, I'm a law student doing research on Warman v. Wilkins-Fournier, and I hoped I could just ask a question.Why did the Div Court need to make an argument from D.P. v. Wagg at all? Wouldn't the easier and simpler argument just have been to note that all Canadian common law must be developed in accordance with "Charter values" (Dolphin Delivery)?

  3. The Trial Warrior Says:

    Dear Anon:Error. Error. The phrase "easier and simpler argument" does not compute. Judicial reasoning based upon the principle of stare decisis requires the Divisional Court to rely on binding Court of Appeal authority to support its establishment of a new legal test.

  4. Anonymous Says:

    I'm suggesting that the binding authority is the SCC in Dolphin Delivery. I think that you are rhetorically suggesting that the Div Court would feel more confident citing more specific authority, rather than relying on the (perhaps disingenuously open-ended) holding by the SCC that judges must develop the common law in accordance with "Charter values". The DivCt might think they would be less readily overturned on appeal.Anyway, I'll just also mention that I disagree with you that this ruling is uncompelling. I think that protection for anonymous internet speech will encourage creativity on the internet, which I think is a worthy goal. I think that, for Canada, this is a better rationale than the "political speech" justifications more often floated.A really interesting part of the Trial Warrior's post is the moral question: does being unwilling to "own" your own comments show that you are cowardly, lack integrity and spine, etc? This warrior-like ethic reminds me of Achilles in the Illiad (when he says that he despises liars). That position appeals to me but if you're interested in reading another angle on it and you have a couple of minutes, may I suggest the Wikipedia article on Hippias Minor by Plato, which is an interesting little summary and critique:http://en.wikipedia.org/wiki/Hippias_MinorI read your blog and am a fan. Thanks for taking the time to write!

  5. The Trial Warrior Says:

    The irony of you posting your comment anonymously on my blawg does not escape me. Your arguments would have greater force if you were willing to use your real name, or even a pseudonym or allonym. In any event, I have read most of the Socratic Dialogues and if he has an Achilles heel, it's his Socratic paradox to which I subscribe: I know that I know nothing. Thanks for reading.

  6. doogie Bowser Says:

    I think the ruling allows for identities to be revealed after libel or some other wrong has been shown to have been committed. The ruling is sensible because it prevents frivolous litigation just to learn someone’s identity.

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