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Backpage.com a sufficiently precise location even post-Mills

The Ontario Superior Court, with its decision in R v Sinnappillai, has looked at the potential impact of the Supreme Court of Canada decision about internet luring in R v Mills in an unexpected context: the defence of entrapment.

The accused was charged with internet child luring and of communicating for the purpose of obtaining the sexual services of a person under the age of 18. He had seen an advertisement on Backpage.com from “Kathy” offering sexual services in exchange for money. He communicated by text with the telephone number given in the ad and was told by Kathy that she was only 15 years old, but arranged to meet with her nonetheless. In fact Kathy was a police officer posing as a 15 year old girl and the accused was arrested when he arrived at the appointed hotel room. As discussed in a previous Newsletter, the accused was unsuccessful in his arguments that the text messages which were used in evidence against him had been obtained in breach of his section 8 rights, and so the accused was convicted. However, he brought an application that that conviction should be stayed on the basis that he had been entrapped.

The scheme by which the accused had been arrested was called “Project Raphael”, and a number of prior accused had tried and failed to persuade judges that it constituted entrapment. Briefly, entrapment has two branches, both of which are meant to prevent the police from engaging in what is usually called “random virtue testing”. The second branch of the test – the relevant one on the facts – says that it would be entrapment for police to offer a person about whom they have no individualised suspicion an opportunity to commit a crime, unless they do so as part of a bona fide investigation. An investigation will be bona fide within the meaning of this test if police limit their random offers to people who are in a location where it is reasonably suspected that criminal activity is occurring, provided that that location is defined with sufficient precision. Cases prior to Sinnappillai dealing with Project Raphael had concluded that Backpage.com was a sufficiently-precisely defined location, and that police had a reasonable suspicion that underaged prostitution was happening at that location, and therefore that it constituted a bona fide investigation: that is, that there was no entrapment. The only real issue in Sinnappillai was whether the Supreme Court decision in Mills, which post-dated the other Project Raphael cases, should change that conclusion. The trial judge concluded that it did not.

The judge summarised the result in Mills:

40 In Mills, a police officer posed as a 14 year old female named Leann in an undercover operation aimed at catching internet child lurers. The police created a Facebook account for Leann with a photograph of a young female and information that she resided in St. John's Newfoundland and attended a local high school. The accused, aged 32, contacted Leann through her Facebook page and subsequently exchanged messages with her over a two month period. He pretended to be 23 years old. Eventually, he arranged to meet Leann at a local park. He was arrested on arrival.

Mills itself was about whether the accused had a reasonable expectation of privacy in his Facebook conversation with “Leeann”. It is a complex decision, with one cohort of three judges finding no reasonable expectation of privacy for one set of reasons, another cohort of two reaching the same conclusion for entirely different reasons, the sixth judge finding both of those sets of reasons persuasive, and the seventh judge finding a section 8 violation. Further, the trial judge here commented that “it is not entirely clear to me how any of the concurring reasons in Mills apply to Mr. Sinnappillai's argument that he was entrapped by the police through Project Raphael” (para 57).

The central issue in the accused’s argument relate to Justice Brown’s decision in Mills, which is arguably the majority decision. Justice Brown relied on the fact that Mills was from the start communicating with what he understood to be a child who was a stranger to him: his reasoning was that an adult could not have a reasonable expectation of privacy with a child they did not know. In this case, defence counsel argued, that reasoning did not apply, since the Project Raphael advertisement on Backpage did not indicate that “Kathy” was 15: that information only came out later in the conversation. Relating this back to the test for a bona fide investigation, the argument would relate to whether the area is sufficiently-precisely defined: could it be said that Backpage.com was a location where the offence of seeking underaged sex workers in particular was taking place, so that it was not random virtue testing to offer any visitor to the site the opportunity to engage in that offence.

The judge in Sinnappillai concluded that nothing about that point in Mills changed the entrapment analysis which had taken place in previous Project Raphael cases, which had looked at the issue of whether the advertisement targeted those interested in this particular offence. The judge also concluded that the timing of when an accused became aware that the person at the other end of the text conversation was a minor was not important:

74 Clearly, the prior jurisprudence on Project Raphael has grappled with the argument that the police would not have known, from the outset, which visitor to the escorts section of Backpage.com was looking for an underage prostitute. And they have been alive to the fact that those parties texting "Kathy" would not have known, from the get-go, that she was underage. Uniformly, courts have rejected these factors as undermining the design of the operation.

75 In the March 2016 iteration of Project Raphael, the police once again used a number of markers about the young age of the fictitious escort. They advertised her as "tight", "brand new", "sexy and young" and with a "young friend". Again, the police did everything they could to narrow the pool of targets to those interested in sex with young females.

The judge concluded that nothing in Mills affected the reasoning from previous cases and so rejected the entrapment argument here as well.

100% guarantee too high a bar

The Office of the Information and Privacy Commissioner for Ontario has considered the issue of blurring of faces in a video – or more importantly the possibility of reversing that blurring – with its decision in Humber River Hospital (Re). The applicant had fallen in a hallway of the hospital, and sought three pieces of video footage showing the events. Much of the decision relates to whether that footage constituted personal health information and so whether it was covered under the relevant legislation or not, and whether it could be severed from information not covered. However, one further issue was another aspect of the hospital’s stance with regard to the footage:

[41] The hospital submits that blurring or blacking out images has traditionally been considered an appropriate method of severing video footage. It submits, however, that in this case, blurring out the images of the individuals other than the complainant is not sufficient to properly sever them out of the video. It submits that instructions on how to reverse or remove facial blurring or blacking out are readily available online.

 [42] The hospital further explains that in its initial response to the access request, it asked its lawyers to assist with the blurring of the video. The blurred video was then viewed by the complainant’s family, at no charge. The hospital submits that the complainant refused to see the video and refused to provide a confidentiality undertaking in exchange for a copy of the severed video. In the hospital’s submission, there is a real risk that he intends to re-identify the patients and other individuals in the video, and/or further disseminate the video to others who may do so.

The hospital proposed that the video should be blurred further by a cybersecurity expert, which would take ten hours and would be at the applicant’s expense, and that the applicant should be subject to an undertaking not to attempt to de-blur the video or to disseminate it to anyone else.

The Commissioner’s office ordered release of the video, and declined to impose any of the conditions sought by the hospital. The decision noted:

[54] I understand the hospital’s concern for confidentiality and its desire to ensure that the privacy of its patients is not compromised. In my view, however, the risk that the obscuring technology the hospital chooses to apply to the video will be reversed is far too remote to justify withholding the entirety of the footage from the complainant. As the hospital itself acknowledges, this office routinely makes orders for the release of severed video footage. This has been ordered in cases where the information to be withheld is highly sensitive. The standard for severing cannot be perfection. In my view, it would be too high of a bar to require that severing be 100% foolproof.

The adjudicator declined to order either that the applicant undertake not to attempt to de-blur the video or to disseminate it, holding that there was no basis beyond speculation to think that he might do so.

Landscaping contract gone bad results in eleven day Small Claims Trial and damages for privacy invasion

In Cecchin v Lander, the Ontario Small Claims Court found that placing surveillance cameras on your own property but pointing at your neighbour’s property can be “intrusion upon seclusion” and nuisance. The case was the result of a residential landscaping arrangement between neighbors that went sideways, with the two parties winding up in an eleven day trial in the Ontario Small Claims Court.

The plaintiffs, Dario and Elaine Cecchin, had initially hired their neighbor (or their neighbor’s company) to carry out landscaping work, which was cancelled by the plaintiffs about two weeks into the job. The plaintiffs alleged that the work was substandard, and the Small Claims Court agreed that the plaintiffs were justified in terminating it.

Following the termination of the landscaping job, matters escalated. The replacement contractors were harassed by the defendant, as were the plaintiffs. (The Court concluded that the act of harassment did not create a civil cause of action.) The defendant also installed additional surveillance cameras on his property, pointing at the neighbor’s property. The Court noted how they were positioned:

94. On the other hand I accept the evidence of the plaintiffs’ surveillance expert Mr. Jon Kuiper concerning these cameras and the extent of the areas they capture (Exhibit 3, Tab 9, last two pages). The defendants’ rear camera pointed at the plaintiffs’ property would capture essentially all of their backyard and the side of their house facing 920 [the defendant’s property]. The front camera would capture substantially all of the plaintiffs’ front yard and part of the front side of their house facing 920.

95. Photographic evidence plainly shows both Mr. Bradbury and Ms. Lander pointing their mobile phones at the plaintiffs’ property on various occasions as if taking photographs or video. Their stance is aggressive. They are often right at the property line and essentially “in the faces” of the plaintiffs and/or TNT personnel as the case may be. On at least one occasion they enlisted the participation of a worker to join in their camera game (see Exhibit 2, Tabs 18-A, 18-F (lower)). I find that the defendants were using video recording devices, including the surveillance cameras, as weapons in their retaliation campaign against the plaintiffs.

96. I accept that the surveillance cameras are pointed so that they capture the plaintiffs’ bedroom window and washroom window in addition to the entirety of the backyard including the patio area.

The plaintiffs also had evidence of the positioning of motion activated floodlights that were pointed at the same bedroom and washroom windows, and that the defendant had parked vehicles in an obstructive manner.

The court concluded that nuisance was made out and similarly found that the placement of the cameras constituted intrusion upon seclusion:

90. Invasion of privacy and more particularly the tort of intrusion upon seclusion was recognized in Jones v. Tsige, supra. At para. 70 of the reasons of Sharpe J.A. the elements of the tort were formulated as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

91. A person’s residence represents a fundamentally important private and personal space. It is a home and a place of seclusion from the world at large. Having surveillance cameras and floodlights aimed at one’s residence is a clear and material intrusion into that space, particularly where, as I find in this case, this was done as part of a deliberate campaign of harassment. I conclude that the torts of invasion of privacy and nuisance are made out. The particular invasion would be highly offensive to a reasonable person; in the language of nuisance it would be unreasonable to require the plaintiffs to suffer the interference without compensation.

With respect to damages, the court awarded each of the plaintiffs $8,000 in general damages, just slightly below the middle of the range established in Jones v Tsige.

The defendant counter-claimed, alleging breach of contract, nuisance and intrusion upon seclusion, all of which were dismissed.

Defendant attempted to strike claim for failing to particularize the specific confidential information at issue

In an action alleging, among other things, misappropriation of confidential information, the defendants moved, in Evertz v. Lawo AG, 2020 ONSC 413, to strike the plaintiffs’ amended statement of claim. In a previous motion, reported at 2019 ONSC 1355, the plaintiffs’ statement of claim had been struck but with leave to file an amended claim within thirty days. It had been found to be defective due to the vagueness of the categories of confidential information and because the allegations of misuse of the confidential information was not sufficiently particular to inform each defendant of the acts alleged by the plaintiffs to constitute misuse of the confidential information at issue.

The issue was whether the plaintiffs’ amended statement of claim had the same deficiencies. In the amended claim, the plaintiffs referred to categories of information:

[10] In the amended statement of claim, at paragraph 92, the plaintiffs plead the confidential information that the defendants allegedly misappropriated and misused. This paragraph describes 23 categories of information such as “preliminary manuals”, “customer databases”, “parts and product databases”, “source code, binary files, and decompilable forms of confidential product software”, and “mechanical specifications and drawings”. Each such category, as pleaded, has a short description.

[11] In paragraphs 94 through 99 of the amended statement of claim, the plaintiffs plead the confidential information that each defendant is alleged to have taken by listing specific categories of alleged confidential information.

The defendants argued that this categorization was insufficient, but the court disagreed:

[17] The defendants submit that by basing their claims on “categories” or “types” of information, rather than particular pieces of information, the amended statement of claim is defective for the same reason that the statement of claim was defective. The defendants submit that the plaintiffs have still failed to meet the minimum level of material fact disclosure that is sufficient to properly plead causes of action based upon alleged misappropriation and misuse of confidential information.

[18] I disagree with the defendants’ submissions in this regard. In paragraph 91 of the amended statement of claim, the plaintiffs identified the particular products to which the confidential information they allege was stolen and misused related. In paragraph 92, the plaintiffs described with particularity the types of confidential information they allege the defendants stole and misused. The descriptions of the types of alleged confidential are much more specific than the descriptions in paragraph 91 of the original statement of claim. The plaintiffs are not required to plead the evidence by which they intend to prove their pleaded allegations, and they are entitled to plead facts they hope to be able to prove after discovery. The defendants would know from the amended statement of claim the information they are alleged to have misappropriated and misused.

The court also found that the previous deficiencies regarding the manner of alleged misappropriation of confidential information was similarly remedied in the amended claim:

[20] I disagree that the amended statement of claim is deficient in this respect. With respect to each defendant, the plaintiffs have pleaded the types of confidential information each defendant is alleged to have misappropriated and misused. These categories are repeated with respect to each defendant. The categories and types of confidential information which each defendants is alleged to have misappropriated and misused are particular. They not too vague or general that each defendant would not know what is alleged. The plaintiffs are not required to plead evidence upon which they rely. They are entitled to plead facts which they hope to be able to prove after discovery, provided the facts pleaded meet the minimum level of disclosure with respect to each defendant.

Lawyer disciplined for allowing staff to use his password to access electronic land registry

In Dhindsa (Re), a Hearing Panel on Disciplinary Action of the Law Society of British Columbia presided over a disciplinary hearing for a lawyer who had engaged in irregular practices relating to access to the province’s electronic land registry system. Specifically, as had been found at an earlier hearing, he had disclosed his password to “Juricert” to his staff, which allowed them to affix his electronic signature to documents that were filed with the Land Title Office. There were two or three documents that had to be signed on each file, and staff testimony indicated that they had used the lawyer’s password anywhere from several hundred to a thousand times, between 2012 and 2015. The Law Society sought a suspension of the lawyer and costs, while the lawyer argued that a fine of $10,000 would be more appropriate.

The Panel made some interesting remarks about the ethical duties of lawyers regarding access to encrypted electronic systems generally and land registry systems specifically:

[15] In our earlier decision we noted at paras. 61 to 63:

The BC Code provides at section 6.1-5:

A lawyer who has personalized encrypted electronic access to any system for the electronic submission or registration of documents must not

1. permit others, including a non-lawyer employee, to use such access; or
2. disclose his or her password or access phrase or number to others.

The commentary in the BC Code applicable to section 6.1-5 states:

[1] The implementation of systems for the electronic registration of documents imposes special responsibilities on lawyers and others using the system. The integrity and security of the system is achieved, in part, by its maintaining a record of those using the system for any transaction. Statements professing compliance with law without registration of supporting documents may be made only by lawyers in good standing. It is, therefore, important that lawyers should maintain and ensure the security and the exclusively personal use of the personalized access code, diskettes, etc., used to access the system and the personalized access pass phrase or number.

…

(b) In 2010, a Law Society hearing panel issued the decision Law Society of BC v. Williams, 2010 LSBC 31, in which they emphasized the importance of lawyers complying with the execution and electronic submission provisions of the Land Title Act, which were important safeguards of the integrity of the land title system. The panel stated as follows at paras. 12 and 13:

Both the execution provisions under Part 5 of the Land Title Actand the electronic submission provisions under Part 10.1 are important safeguards of the integrity of the land title system in British Columbia. As officers under the Act, members of the legal profession play a key role in ensuring the integrity of transfer documents and safeguarding the system from fraud.

Given the importance of the role played by lawyers who act as officers, conduct related to the electronic submission of improperly executed documents must be viewed as serious. In this case, the executed paper copy of the Form C release was not registrable because, on its face, it had not been witnessed by an officer. The Respondent overcame this impediment to registration not by obtaining a properly executed document, but by incorporating his electronic signature and inserting his name under the signature space for the officer, then submitting an electronic version.

[16] Paragraph 14 from Williams is also worth noting:

No financial harm ensued because the document was a release of a builders lien claim and was apparently properly authorized by the corporate claimant. However, the submission of documents that are defective in their execution harms the land title system by eroding the reliability and authenticity of documents submitted for registration. Further, because the officer does not submit the originally executed document when an electronic document is submitted for registration, the defect is not apparent, and the Land Title Office cannot scrutinize the original document to ensure its registrability

[emphasis added]

[17] We also noted in our reasons several publications from the Law Society pointing out that it was an offence to disclose ones Juricert password and that the integrity of the Land Title registration system depended on lawyers not sharing their password.

Noting that the Society’s main function is regulating the profession in the public interest, the Panel added:

[32] We have noted above the importance the profession plays in the use of electronic documents. As gatekeepers of the land title electronic registration system, lawyers must use that authority ethically and responsibly. The public depends on the profession to ensure the reliability and authenticity of electronically filed documents.

The Panel took into account that by having his staff carry out tasks that he was supposed to do, the lawyer reduced the amount of time he would have spent in the office on such administrative work, and correspondingly reduced his own workload, possibly benefiting his “very busy conveyancing practice.” On the other hand it was clear that the lawyer’s practice had been harmed by the proceedings, as some banks were refusing to deal with him and he had experienced a decline in business. In the result, the lawyer was suspended from practice for 4 months and had an order of costs imposed on him.

Chain of text messages found to be necessary for accused to have fair trial

In R. v. R.S., 2020 ONSC 1509 (no hyperlink available as yet) the accused was being tried for sexual assault. He applied to adduce in evidence two items: 1) a number of texts that were sent to him by the complainant, which the trial judge described as:

Deal[ing] with events proximate to the date of the offences and the intervening period. They relate to communications pertinent to setting up the occasions when the sexual assaults are alleged to have occurred and to discussions about what transpired afterwards.

And 2) an email sent to the accused by the complainant in which the complainant described an erotic dream that she had about the accused.

The trial judge, Nakatsuru J. of the Ontario Superior Court, noted that the application was brought under ss. 278.92 and 278.94 of the Criminal Code, relatively new provisions that put strict requirements on the admissibility of records containing personal information about the complainant, which are in the possession of the accused. The texts were held to meet these requirements. Because of their content and their proximity to the events from which the accusation of sexual assault emerged, they were directly relevant to the complainant’s credibility; for the accused to have fair answer and defence, he had to be permitted to use them in cross-examination. As to the complainant’s interests, Nakatsuru J. noted:

In terms of prejudice to L.H.'s personal dignity and right of privacy and her right to personal security and the protection of the law, it must be remembered that these are text messages that she voluntarily sent to the accused. Any assertion of a reasonable expectation of privacy must be assessed in that context. L.H. chose the words she sent. This is not a record whereby some third party noted or is interpreting what she said. As an autonomous individual, it is not an unfair intrusion into L.H.'s privacy to have her explain what she meant by these texts. Texts which are relevant to the issues that the jury must decide.

However, the email was excluded as being insufficiently probative on the conduct charged, and more likely to bring into play some stereotypical views about the behaviour of sexual assault victims.

In response to the current COVID-19 pandemic and declared public health emergencies, Canadian federal, provincial and territorial privacy regulators have posted specific guidance to employers, companies and government institutions on the collection, use and disclosure of personal information and personal health information in this new context. The relevant documents can be found here:

• Office of the Privacy Commissioner of Canada
• Office of the Information and Privacy Commissioner of British Columbia
• Office of the Information and Privacy Commissioner of Alberta
• Office of the Information and Privacy Commissioner of Saskatchewan
• Office of the Information and Privacy Commissioner of Ontario
• Commission d'accès à l'information du Québec
• Office of the Information and Privacy Commissioner of Newfoundland and Labrador
• Yukon Information and Privacy Commissioner
• Office of the Information and Privacy Commissioner of the Northwest Territories

Year-long smear campaign over multiple websites results in large damage award

The Supreme Court of British Columbia ordered a very high damage award for online defamation with its decision in Rook v Halcrow.

The plaintiff, Brandon Rook, had been director and CEO of a mining company, a founder of his own company, and provided business consultancy services. He had entered into a romantic relationship with the defendant for less than a month in 2015, and then again for about six months in 2016: on both occasions Rook was the one to end the relationship. The relationship ended in July 2016: from August 2016 until August 2017, scores of posts about the accused were made on many websites. These claims included that he was an alcoholic, that he was a business failure and a fraud, that he had STDs, and that over a period of many years he did not disclose these STDs to sexual partners and had spread them (which the trial judge noted amounted to an accusation that Rook had committed sexual assault), that he was heartless and uncaring, that he failed to pay child support, and others.

Among other places, these posts had been made on Instagram, giving Rook’s name and attaching his image, with the hashtag #brandonrook as well as others like #loserlife, #drunk, #noheart, #notnicepeople, #whatswrongwithpeople, and #stdspreader. In addition, there were multiple postings about the plaintiff on sites such as thedirty.com, stdcarriersdatabase.com, stdregistry.com, liarscheatersrus.org, reportmyex.com, cheatersandbastards.com, www.badbizreport.com, deadbeatregistry.com, and others.

The defendant’s only defence was that she was not the one who had made the posts, but the trial judge noted that the evidence was “clear and compelling” that she had done so. First, there was expert evidence that the IP address from which the defendant sent emails to the plaintiff was also the IP address used to set up the Instagram account from which the posts in question were made. The defendant suggested that others could have used her WiFi while at her house to set up the account, but the judge found that explanation not credible. In particular this was because: the defendant frequently texted the plaintiff about taking down the posts and threatening to put them up again or to create further posts; the phraseology in the posts was remarkably similar to that of the defendant in her texts, and; there was no evidence of anyone else with a motive to make the posts or the knowledge of the personal details which were mentioned.

The judge found it unambiguous that the posts were defamatory, and noted that each post was a separate cause of action on its own. Further, although proof that the posts had come to the attention of a third party was not necessary if it could be inferred, in this case there was such proof. First, there was evidence from the accused’s ex-wife that she had read them. Beyond that, it was apparent from the sites that some individual posts had been viewed thousands of times, and many had comments on them.

The judge noted that defamatory statements were presumed to be damaging, but that in addition aggravated damages could be awarded where actual malice was shown, as it was in this case. The plaintiff was therefore awarded $175,000 in general damages as well as $25,000 for aggravated damages. In addition, the plaintiff had engaged the services of reputation consultants to assist him in having the defamatory postings removed, and so he was also awarded US$29,870 as special damages for the cost of that service. In addition he was given an injunction restraining the defendant and others with knowledge of the order, wherever they were located in the world, from publishing any of the comments contained in the attached schedule.

Defamation plaintiffs granted summary judgment and permanent injunction after effusive campaign of internet defamation

In West Edmonton Mall Property Inc. v. [Defendant], the plaintiff company and its principal had commenced a defamation action against the defendant, who had previously operated a store in the West Edmonton Mall that sold beachwear and swimwear. At one point she had made a Facebook post in which she invited the Premier and Prime Minister to come to her store, in order to discuss the “retail apocalypse” that she felt was happening to small business owners. After this, her store was closed, her lease terminated and her product seized, all for alleged non-payment of rent. The next series of events was described by Justice Douglas Mah of the Alberta Court of Queen’s Bench as follows:

[21] Following Surfco’s demise at WEM, sometime in 2017 Ms. Proctor began her internet campaign of criticism and disparagement against the Ghermezians and their mall complexes. Using social media platforms such as Facebook, Twitter, Instagram and LinkedIn, as well as her own website (americandreamstore.blogspot.com) and Youtube channel, Ms. [Defendant] has relentlessly attacked, insulted and heaped scorn on David and his family and WEM and its associated businesses. The extent and scope of these attacks are described in some detail in 52 paragraphs of David’s affidavit of November 7, 2019 along with examples as exhibits. Apparently wishing that nothing be overlooked, Ms. Proctor herself, as her own evidence, submitted screenshots of the material in question, which evidence is contained in three large binders and, as I said, comprises by estimate some 1000 pages.

[22] It would be difficult to recite the complete catalogue of Ms. [Defendant]’s work. Rather, for illustrative purposes, I will mention some examples and try to focus on the material that David and WEM find most troubling and defamatory.

Justice Mah went on to catalogue a large representative sample of the defendant’s internet-based hostility towards the defendants, which was largely along fairly racist, anti-immigration and other critical lines, referring to the individual plaintiff in particular as having stolen the defendant’s business, calling him a “snake” and involved various videos in which the plaintiff’s head was superimposed onto different bodies. On the day of the hearing she had filed a new affidavit with an accompanying video, which showed the head of the plaintiff’s lawyer superimposed onto the body of a bikini-clad woman, and referred to the lawyer’s law firm as “SNAKE LAW.”

The court considered the plaintiffs’ application to be granted summary judgment on the defamation claim (having already dismissed the defendant’s counterclaim for being vexatious and not disclosing a cause of action). The defendant’s various communications were clearly defamatory, particularly in that they suggested that the plaintiffs were criminals and terrorists. Given that the comments were published on the internet, “there was publication of the defamatory comments to the entire world: Fort McKay Métis Community Association v Morin, 2019 ABQB 185 at paras 1, 55-56.” No defences were available, particularly as the defendant was found to have been motivated by malice.

Further, because the defendant had already wilfully failed to comply with various orders and an injunction against her behaviour, there was “a clear danger that Ms. [Defendant], if unfettered, will engage in online activity that will contravene fundamental notions of justice and undermine the integrity of the judicial process.” Justice Mah extended the previous injunction and added a provision enjoining the defendant from publishing any material or commentary concerning the proceedings or anyone involved in them. It was clear that the plaintiffs were in a position to apply for a permanent injunction as well, and in that regard Justice Mah stated:

As far as I am concerned, what is at stake for Ms. [Defendant] in any permanent injunction application is the extent to which she should be allowed to access and use the internet, given her history of misuse. Her chances for continuing to be allowed to use the internet will, in large part, depend on whether between now and the date of the upcoming application, she has complied with Court Orders and has demonstrated that she can use the internet responsibly.

Ontario Law Reform Commission proposes reforms in light of internet defamation

On March 12, 2020, the Law Commission of Ontario (“LCO”) released Defamation Law in the Internet Age(“Final Report”). This Final Report builds on the analysis of the LCO’s November 2017 Consultation Paper, looking at reforms driven by two primary factors:

first, that the internet is now the arena in which much, if not most, defamation occurs and, second, that the internet has had an unprecedented impact on the two core values underlying defamation law: freedom of expression and protection of reputation. (p 1).

In its Final Report, the LCOmakes 39 recommendations. For the most part these recommendations do not address the substantive law of defamation, which the LCO proposes should continue to be defined by the common law. Other than some specific proposals, such as narrowing the definition of “publication”, the recommendations address the mechanisms for enforcing defamation law, including through measures involving internet intermediaries such as Facebook and Google.

Many of the report’s recommendation aim at improving access to justice in defamation disputes in Ontario by diverting high volume, low value defamation claims away from the formal court system and encouraging informal, practical resolutions. To accomplish this, the LSO recommendations contemplate three procedural streams for resolving defamation complaints:

1. Notice and takedown
   
   All defamation claims would begin with the complainant serving a mandatory notice of complaint of the alleged defamation to the publisher. In certain circumstances, this service might be effected electronically, such as by email, text, or private messaging to a social media account (p 40). Electronic service of a defamation notice is not currently permitted in Ontario.
   
   If the complainant cannot contact the online publisher directly, the notice requirement would be met by sending notice to the intermediary platform about the allegedly defamatory material being hosted on the platform. The platform would then pass the complaint on to the publisher without assessing the legitimacy of the claim and while protecting the identity of anonymous publishers (p 45). The intermediary platform would play a crucial role in improving access to justice in online defamation disputes:

   The LCO recommends that the publisher be granted two days to respond to the allegation. If the publisher does not respond within the required time, it would trigger the intermediary platform’s obligation to take down the allegedly defamatory content from its online publication. However, if the publisher does respond, then the complainant could pursue the publisher directly, either by informal means or through a defamation action. (p 71)

2. Online Dispute Resolution
   
   The report also encourages the government to explore allocating public resources to developing a voluntary Online Dispute Resolution (ODR) platform as an inexpensive and expedient mechanism to structure and facilitate informal negotiations and resolutions. Specifically, the LCO advocates for a government-created ODR tribunal (p 100). British Columbia has implemented the Civil Resolution Tribunal (“CRT”) to resolve small claims under $5,000, condominium disputes, and recently motor vehicle accident claims below $50,000. The LCO recommends that a government-created ODR tribunal similar to the CRT would improve access to justice in resolving online defamation disputes in Ontario.
3. Court action
   
   Court action would be reserved primarily, but not exclusively, for higher value defamation claims involving professional public interest publishers. Other factors would also be considered, including whether the complainant was a private individual or someone with a public reputation, and the nature and extent of reputational harm at issue. Here, a preliminary anti-SLAPP motion would remain available to defendants, and an additional new motion would be introduced for an interlocutory takedown order. This order would no longer be based on the “rarest and clearest” test, bur rather a statutory test that would balance the potential for and extent of online reputational harm suffered by the plaintiff against the public interest in protecting freedom of expression in the circumstances would be introduced (p 57). This would be used “where the potential for reputational harm significantly outweighs the expressive value of the publication at stake” (p 16). With respect to Norwich orders, the LCO recommends that filing a notice for a Norwich order “should automatically put intermediary platforms on notice that they must preserve evidence of the IP address at issue” (p 61).

The LCO summarized these three proposed approaches in chart form.

The Report also proposed some specific changes to defamation law, and suggested other procedural changes. For example, the LCO argued that “disparate limitation periods for different types of publication are no longer justifiable in the internet era” (p 49) and recommended that there be a single limitation period of two years applicable to all defamation claims. The Report also suggested narrowing the definition of “publication” in the context of defamation so that, generally speaking, internet intermediaries would not be liable for defamatory third party (user-generated) content. Instead those intermediaries would be responsible under the notice and takedown regime, but would not face common law liability.