A.B. v. Bragg Communications Inc. et al., 2010 NSSC 215

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 04, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSSC 215;(2010), 293 N.S.R.(2d) 222 (SC)

A.B. v. Bragg Com. Inc. (2010), 293 N.S.R.(2d) 222 (SC);

    928 A.P.R. 222

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JN.054

A.B., C.D. (applicants) v. Bragg Communications Inc., Halifax Herald Limited (respondents)

(Hfx. No. 329542; 2010 NSSC 215)

Indexed As: A.B. v. Bragg Communications Inc. et al.

Nova Scotia Supreme Court

LeBlanc, J.

June 4, 2010.

Summary:

The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included a photograph of the applicant and other particulars that identified her. The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature. The applicant commenced three applications: one to abridge the notice period required respecting an application for relief brought pursuant to Civil Procedure Rule 5.06; one to use pseudonyms and for a publication ban concerning the substance of the defamatory statements made about the applicant; and one for an order requiring that Bragg Communications provide information in its possession regarding the identity of the person(s) who used an IP address on a specified date and time.

The Nova Scotia Supreme Court exercised its discretion to abridge the notice period. The court allowed the application for disclosure, but denied the application for a publication ban and the use of pseudonyms.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 1404

Administration - General - Public access to judicial proceedings (incl. court records) - The Nova Scotia Supreme Court reviewed the principles applicable in an application in civil proceedings to use pseudonyms and for a publication ban - The court added that "In assessing the application it is important to remember that the press plays a fundamental and important role in an open and democratic society. With a publication ban, it would still be possible for people to attend court and observe the proceedings. However, it must be remembered that people rely on media coverage to learn what transpires in the courtroom. For most people, the publication ban would have the same effect as a sealing order, meaning that the public would never learn of the details of the litigation." - See paragraphs 25 to 30.

Courts - Topic 1404

Administration - General - Public access to judicial proceedings (incl. court records) - The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included a photograph of the applicant and other particulars that identified her - The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature - The applicant applied to use pseudonyms and for a publication ban concerning the substance of the defamatory statements made about her - The Nova Scotia Supreme Court dismissed the application - The applicant's assertion that if a publication ban was denied, people might be prompted to revisit the profile, was not a compelling basis to grant a ban - The profile no longer appeared on the internet - Moreover, it seemed implausible that people who downloaded and saved the profile would be unaware of the details or of the applicant's identity - A ban would not have a beneficial effect for the applicant - The applicant asserted that someone might republish the Facebook page, but the level of that risk had not been established - A total publication ban was not the least restrictive means available to deal with the request - The balance of whether to grant a ban weighed in favour of public access - The public should be informed about how social networking sites worked and how they could be destructive to the public and particularly to young persons - Bullying and this type of pernicious conduct should be exposed and condemned by society - The scope of an order of the kind requested should be tied to the restriction's legitimate objective - A publication ban was not justified - There was no evidence of future or past harm to the applicant's health - The applicant's contention that if she succeeded with a defamation suit, she would be entitled to a presumption of damages, was an insufficient basis for the requested order - See paragraphs 30 to 38.

Evidence - Topic 16

General and definitions - Ban on publication - [See both Courts - Topic 1404 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - When admission of hearsay necessary and evidence reliable - The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included a photograph of the applicant and other particulars that identified her - The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature - The applicant and her father applied for an abridgment of time; to use pseudonyms and for a publication ban; and for an order requiring that Bragg Communications provide information regarding the identity of the person(s) who used an IP address on a specified date and time - The applicant's father filed a supporting affidavit - There was no evidence of the age of the applicant apart from an e-mail from her counsel and the year of birth shown in the Facebook profile - The applicant's counsel stated that the information in the profile was hearsay and inadmissible apart from the applicant's photo - Intervenors asserted that there was no evidence of the applicant's age - An issue also arose respecting impermissible hearsay statements in the father's affidavit - The Nova Scotia Supreme Court stated that, for the purposes of these applications, it was taking the view that the applicant was under 19 years of age and therefore could not have started the application on her own - She had to act through a guardian - The court allowed the entirety of the father's affidavit on the basis of necessity and reliability - The court also allowed it in order to allow the applications to go forward - See paragraphs 5 to 8.

Infants - Topic 6081

Legal proceedings - Representation of infants - General - [See Evidence - Topic 1527 ].

Practice - Topic 131

Persons who can sue and be sued - Infants - General - [See Evidence - Topic 1527 ].

Practice - Topic 576

Parties - Persons unknown or not named - Use of pseudonym or initials - [See both Courts - Topic 1404 ].

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - [See Evidence - Topic 1527 ].

Practice - Topic 4155

Discovery - General principles - Application - How made - The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included a photograph of the applicant and other particulars that identified her - The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature - The applicant applied for an order requiring that Bragg Communications provide information regarding the identity of the person(s) who used an IP address on a specified date and time - The notice of application referred to Civil Procedure Rules 14.12 and 18.12 - Rule 14.12 permitted the court to order "a person to deliver a copy of a relevant document or relevant electronic information to a party." - Rule 18 expressly contemplated discovery before a proceeding had started where, inter alia, "the party who moves for the discovery wishes to start a proceeding but is prevented from doing so immediately, and evidence needs to be preserved." - The Nova Scotia Supreme Court stated that the application was more a matter of production (rule 14.12) than of discovery (rule 18.12) - The applicant sought documents, not a submission to oral discovery - Moreover, the grounds for the order included in the notice of application stated that the applicant "seeks production of the requested information." - See paragraphs 9 and 10.

Practice - Topic 4551

Discovery - Production and inspection of documents - General - Circumstances when available - The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included a photograph of the applicant and other particulars that identified her - The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature - The applicant applied for an order requiring that Bragg Communications (Bragg) provide information regarding the identity of the person(s) who used an IP address on a specified date and time - The Nova Scotia Supreme Court allowed the application - There was a prima facie case of defamation - There was no other means by which the applicant could obtain the required information - Bragg had not objected to the order - The court inferred that if Bragg had been aware of any other means by which the applicant could learn the author's identity, Bragg would have raised it with either the applicant or the court - The applicant took reasonable steps in approaching Bragg and Facebook in pursuit of the information - The reasonableness of an expectation of anonymity had to be assessed on a case-by-case basis - Here, an expectation of anonymity by the author would not have been a reasonable one - Anonymity was not an automatic shield for defamatory words - In balancing the competing interests, the court was mindful that the Charter values of freedom of expression and privacy were involved and that the requirement to demonstrate a prima facie case of defamation furthered the objective of establishing an appropriate balance - Where the applicant had established a prima facie case and no public interest beyond the general right of freedom of expression was offered in support of maintaining the author's anonymity, the court was satisfied that the public interest prevailed - See paragraphs 11 to 22.

Practice - Topic 5003

Conduct of trial - General principles - Ban on publication - [See both Courts - Topic 1404 ].

Telecommunications - Topic 3545

Internet (world wide web) - Internet service providers and site operators - General - Disclosure of information (incl. internet protocol addresses) - [See Practice - Topic 4551 ].

Cases Noticed:

Warman v. Wilkins-Fournier et al. (2010), 261 O.A.C. 245; 2010 ONSC 2126 (Div. Ct.), appld. [para. 11].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 12].

Norwich Pharmacal Co. et al. v. Customs and Excise Commissioners, [1973] 2 All E.R. 943; [1974] A.C. 133 (H.L.), refd to. [para. 13].

BMG Canada Inc. et al. v. John Doe et al., [2005] 4 F.C.R. 81; 334 N.R. 268 (F.C.A.), refd to. [para. 13].

Grant et al. v. Torstar Corp. et al. (2009), 397 N.R. 1; 258 O.A.C. 285; 2009 CarswellOnt 7956; 2009 SCC 61, refd to. [para. 17].

MacIntyre v. Nova Scotia (Attorney General), Grainger and Canada (Attorney General) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609; 132 D.L.R.(3d) 385, refd to. [para. 25].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 25].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, refd to. [para. 25].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203; 2002 SCC 41, refd to. [para. 25].

Osif v. College of Physicians and Surgeons (N.S.) (2008), 271 N.S.R.(2d) 370; 867 A.P.R. 370; 2008 CarswellNS 656; 2008 NSCA 113, refd to. [para. 26].

Doe v. Church of Jesus Christ of Latter-Day Saints in Canada et al. (2003), 341 A.R. 395; 2003 ABQB 794, refd to. [para. 29].

John Doe, Re (2005), 253 Nfld. & P.E.I.R. 141; 759 A.P.R. 141; 2005 NLTD 214, refd to. [para. 35].

J. Doe v. M. Brown et al. (1998), 205 N.B.R.(2d) 123; 523 A.P.R. 123 (T.D.), refd to. [para. 35].

A.B. v. Stubbs et al. (1999), 97 O.T.C. 15; 44 O.R.(3d) 391; 1999 CarswellOnt 1936; 175 D.L.R.(4th) 370; 36 C.P.C.(4th) 175 (Sup. Ct.), refd to. [para. 35].

B.G. et al. v. British Columbia (2004), 200 B.C.A.C. 223; 327 W.A.C. 223; 242 D.L.R.(4th) 665; 2004 BCCA 345, refd to. [para. 36].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 14.12, rule 18.12 [para. 9].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.)

Counsel:

Michelle Awad, Jane O'Neill and Daniel Wallace, for the applicants;

Nancy Rubin, for The Chronicle Herald;

Alan Parish, Q.C., for Global Television;

No one appeared for Bragg Communications.

These applications were heard at Halifax, Nova Scotia, on May 26-28, 2010, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 4, 2010.