Theralase Technologies v Lanter 2020 ONSC 205 (CANLii) is a case where a number of anonymous people posted defamatory statements about a company and its executives on Stockhouse.com in 2014-2019. One of the wrongdoers (pennyoilking) was still posting in April 2019 as i outline below.
There is no question that the the language and tenor of the posts was defamatory. Myers J. did however feel the need to point out the defamatory nature of calling someone a ‘used car salesman’(para 73).
I have reproduced here below, the posts of ‘pennyoilking’ to show the fact situation in Theralase Technologies v Lanter, the most important internet case of 2020 so far.
Why is it the most important?
Reason #1
Ontario rules permit the use of John Doe as a TEMPORARY placeholder in cases where the plaintiff does not,at the beginning of the action, know the name of the defendant. What is new and important is that this case is the first in Ontario and in Canada to impose default judgement upon an STILL UNNAMED defendant.
Myers J. repeats that the court generally acts in personam (para 17). The rules have methods for dealing with service complications, but this is the first Canadian case where the defendant was still unnamed at the point of JUDGMENT.
This was default judgment, so the real test of this innovation in the law (judgment against unnamed defendants) will come when and if the plaintiff moves to collect against the unnamed defendant. It is certain that bank accounts and real estate title is not held in the name of ‘pennyoilking’.
When ‘pennyoilking’ is actually attacked, as against his house and his bank account, he will rush to the court for relief, if for nothing more than an opportunity to defend. The court will require him to present his substantive defence, not merely his non-service defence, although actual non-service and non-notice, if proven should go a long way toward mitigation.
Reason #2
Internet anonymity invites common law innovation to meet the threat. The threat is that the old and excellent strict rules of local service are conventional weapons in a digital age. Myers J. drew upon UK case law (in an uninsured un-named driver hit-and-run case) to make the legal jump from the old rules of naming the defendant, to the new rule that the defendant doesn’t actually have to be named before judgment. (para 16)
The deep theory question is important. Common law courts have a history of being modest about their jurisdiction (they only attack the person before the court). Service is the litmus test to establish jurisdiction (para 18). This is why service upon the actual wrongdoer is so important to unleash the legal force of a court order.
The internet cases extend jurisdiction now to unnamed (and potentially un-served) defendants. As stated above, the harmful effects of this specific extension of jurisdiction to anonymous internet writers, seem minor in comparison to to the need to protect defamation.
However…
my philosophy comment: Once a court is free to pass judgement upon tenuously named defendants with peripheral connection to the court, the conventional basis of authority of the court over that defendant (jurisdiction) becomes a sophistic exercise rather than something everyone generally sees and agrees with. Power exercises, in taking jurisdiction without the old fashioned rules being met, which look shockingly unfair through the traditional lens, will inevitably produce unexpected and undesirable reaction in the longer term.
