Fridays with Rogers Partners

November 05, 2021

At our weekly meeting, Annie Levanaj discussed the recent decision of the Court of Appeal in Echelon Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763. This decision dealt with a motion brought by a “John Doe” defendant, who was an anonymous online poster, to extend time to serve and file a Notice of Appeal from an order denying his standing to appear as an anonymous party and make submissions on an Anti-SLAPP motion.

Facts

There was an anonymous post made on the Glassdoor website from a previous employee of the plaintiff Echelon Environmental Inc., providing a review of the plaintiff as an employer. Echelon commenced a defamation action against Glassdoor and poster, named as John Doe. The identity of John Doe was never revealed to the other parties.

Glassdoor’s position was that the John Doe’s post was an expression of public interest, and therefore protected by s. 137.1 (3) of the Courts of Justice Act[1]. As such, Glassdoor brought an Anti-SLAPP motion to have Echelon’s action dismissed.

Judicial History

In March 2021, John Doe’s counsel advised that they intended to file a factum and make oral submissions for the Anti-SLAPP motion. Echelon objected to this.

On June 7, 2021, Justice Dow was unable to hear the substance of the anti-SLAPP motion and adjourned it, but dealt with the issue of John Doe’s right of participation. He stated that John Doe had not filed a Notice of Intent to defend, and ruled that John Doe accordingly had no standing and could not be heard in the Anti-SLAPP motion. 30 days then elapsed, and John Doe did not appeal this decision.

On July 28, 2021, the Anti-SLAPP motion took place before Justice Pollak. Counsel for John Doe appeared and attempted to re-argue the standing issue. Justice Pollak adjourned the standing issue to August 2021, so that it would be back before Justice Dow.

On August 13, 2021, John Doe served a motion record in the Court of Appeal seeking an extension of time to serve and file a Notice of Appeal. John Doe’s counsel did not seek an adjournment of the anti-SLAPP motion itself, which proceeded on August 16, 2021, and was ultimately dismissed by Justice Dow.

Glassdoor’s counsel subsequently indicated an intention to appeal Justice Dow’s decision on the anti-SLAPP motion.

Issue

The issue on this motion was whether John Doe should be granted an extension of the time to serve and file a Notice of Appeal from Justice Dow’s order denying him standing.

Court’s Analysis

The court stated that it will extend the time to serve and file a Notice of Appeal if an extension is required by the justice of the case,[2] and will generally consider four factors:

  1. Whether the appellant formed a bona fide intention to appeal within the relevant time period;
  2. The length of delay in filing and the explanation for it;
  3. Any prejudice that would be caused to the responding party by allowing the motion;
  4. The merits of the proposed appeal. 

The court emphasized that all four factors must be considered.

Intention to Appeal

John Doe‘s position was that he formed an intention to appeal very shortly after appreciating the finality of Justice Dow’s decision.

Echelon’s position was that the finality of the decision was obvious, and John Doe waited to appeal as part of a tactical decision to get another attempt at getting a standing order from another judge. After this failed, John Doe realized that the motion would be returned to Justice Dow, and only then decided to appeal.

The court noted the finality of Justice Dow’s decision, and that John Doe’s actions demonstrated that he had no intention to appeal until well after the time period had expired. He did not form the intention to appeal during the relevant time period. Instead, the court stated that the intention John Doe formed during the relevant period was the intention to challenge Justice Dow’s order at the hearing before Justice Pollak.

Length and Explanation for Delay

The court stated that while the 67-day delay was not long, John Doe’s explanation for it was weak, since it rested on his misunderstanding as to whether Justice Dow’s order was final.

Prejudice to Responding Parties

The court stated that Echelon had a “far more difficult litigation position” due to the delay that it would have endured if John Doe filed in a timely manner. Had John Doe properly appealed the standing decision in time, the Anti-SLAPP motion would have been adjourned.

Instead, Echelon would now have to litigate Glassdoor’s appeal of the Anti-SLAPP dismissal, while simultaneously litigating an appeal of John Doe’s standing. In addition, the court noted that if Echelon prevails against Glassdoor, but John Doe is successful, the Anti-SLAPP motion will have to be heard again on a new record involving John Doe,  effectively invalidating the victory against Glassdoor.

Merits of the Appeal

John Doe argued that Justice Dow made errors of law in determining he had no standing, and in providing insufficient reasons for the decision. John Doe argued he had private interest standing as a named defendant in the action, and that the Anti-SLAPP motion could affect his rights by resulting in the action being dismissed.

Both John Doe and Glassdoor relied on section 137.1 of the Courts of Justice Act, and its protection of anonymous speech.  The judge stated that he was not taken to any authority for the proposition that s. 137.1 modified the general obligation that parties who wish to participate in litigation must identify themselves, both to the court and to other parties, and that s. 137.1 itself does not provide for this.

Instead, the court stated that section 137.1 “protects a subset of speech by not maintaining its anonymity but by providing an expedited procedure for having the action dismissed”. The court noted that John Doe’s position was novel, contrary to a well-established principle, and without support in law.

Regarding John Doe’s submission that the reasons provided were insufficient, the court stated that John Doe filed no materials, and there was no transcript of the hearing.

Court’s Decision

The court held that John Doe made a strategic procedural choice, which failed. Providing an extension of the time to appeal at this point would result in significant expense and repetition of matters already litigated. Therefore, the justice of the case did not require the court to grant an extension. The motion for leave to extend time was dismissed.

[1] R.S.O. 1990, c. C.43.

[2] 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286