Ontario court orders internet service provider to disclose identity of author of allegedly defamatory emails

20 July 2017

By Kevin Zakreski

Carleton Condominium Corporation No 282 v Yahoo! Inc, 2017 ONSC 4385, is an interesting case that displays the intersection of condominium law, civil procedure, and the tort of defamation.

The case was an application launched as a prelude to a defamation proceeding. The plaintiff was a condominium corporation, which claimed that its board of directors was defamed by email messages “sent to owners and occupants of the Condominium Corporation.” The author of the emails used the pseudonym “Ian Fleming.” In the emails, “Ian Fleming” harshly criticized the managerial competence and personal integrity of members of the condominium corporation’s board (the Ontario equivalent of a British Columbia strata council).

When confronted by a reply email from the condominium corporation, “Ian Fleming” refused to disclose his or her identity. A potentially identifying feature of the emails was their email address, which contained a domain name administered by the respondent internet service provider.

In this application, the condominium corporation sought a Norwich order—“a form of equitable relief that if granted, requires a third party to a potential action to disclose information that is otherwise confidential”—from the Ontario Superior Court of Justice. (The name refers to Norwich Pharmacal Co v Commissioners of Customs & Excise, [1973] UKHL 6.)

The court’s consideration of the application turned on a review of five factors, which had been established in prior Ontario cases. (British Columbia courts have applied a similar list of factors to applications for Norwich orders in this province.) The court’s review of these factors yielded the following conclusions:

  • The Condominium Corporation has demonstrated a bona fide claim of defamation.
  • Yahoo! and Yahoo! Canada, although innocent of any wrongdoing, are implicated in the alleged defamation because their services were used for publication;
  • Yahoo! and Yahoo! Canada are the only known potential sources of the information;
  • The costs of compliance are nominal and the Condominium Corporation has provided an undertaking to indemnify Yahoo! and Yahoo! Canada for their reasonable costs of complying with the order;
  • The interests of justice strongly favour the Condominium Corporation obtaining the disclosure.

The court relied in part on section 17 (3) of the Ontario’s Condominium Act, 1998, in reaching the conclusion noted in the last bullet point:

Second, the Condominium Corporation has a duty under s. 17(3) of the Condominium Act, 1998, S.O. 1998, c. 19 to “take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules.” In York Condominium Corporation No. 163 v. Robinson, 2017 ONSC 2419 (CanLII), Morgan J. ordered the respondent to cease and desist from uncivil or illegal conduct that violates the Condominium Act, 1998 or the condominium corporation’s rules, and to refrain from abusing, harassing, threatening or intimidating any employee or representative of the corporation. In doing so, Morgan J. found the application to be “a step, reasonably designed” by the condominium corporation in that case to enforce the rules and to protect its workers from harassment. ([A]t para. 14.) I find that the present application is a step, reasonably taken by the Condominium Corporation to ensure that its board members and employees are not subjected to statements which I have found are capable of being found to be defamatory.

In the result, the court granted the condominium corporation the requested Norwich order.

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