Unidentified man appealed only after order attained finality, court said
The Ontario Court of Appeal has denied an unidentified man’s motion to extend time to file an appeal from Superior Court Justice Grant Dow’s order which denied his standing to appear as an anonymous party on an anti-SLAPP motion brought by a company review website against his former employer.
In Echelon Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763, an anonymous poster, a former employee of Echelon Environmental Inc., posted an online review about Echelon on the Glassdoor website. Echelon then brought a defamation action against Glassdoor Inc. and the anonymous poster, referred to as John Doe.
Glassdoor filed an anti-SLAPP motion to have Echelon’s action dismissed. Glassdoor argued that Doe’s post was an expression relating to a matter of public interest pursuant to s. 137.1(3) of the Courts of Justice Act. Doe advised that he intended to appear as anonymous party and make submissions on the anti-SLAPP motion.
In June 2021, Justice Dow noted that Doe had not filed any notice setting out his intention to make a defence, and consequently ruled that Doe had no standing and could not be heard from in the anti-SLAPP motion. Thirty days elapsed and Doe did not appeal the order.
In August 2021, Doe moved for an extension of time to file an appeal from Justice Dow’s order denying his standing. While the anti-SLAPP motion was ultimately dismissed, Doe continued to press his motion.
In its decision, the Court of Appeal agreed with Echelon that Doe’s motion for extension of time could no longer be granted for lack of intent to appeal. Doe’s intention to appeal had become apparent only after “appreciating the finality of Dow J.’s decision,” the court noted.
“I agree that Dow J.’s order was clearly final on its face. Dow J.’s order states that if Doe did not identify himself, he would have no standing and no right of participation. Nothing that happened subsequently could have caused Dow J.’s order to ‘crystalize’ at a later date, as Doe’s counsel contends,” Justice Bradley Miller said.
The actions of Doe, given the obviousness of the finality of Justice Dow’s order, and the absence of any change of circumstances suggested that Doe did not intend to appeal, the court stressed.
Doe and Glassdoor further argued that s. 137.1 serves to protect anonymous speech and part of protecting anonymous speech is keeping it anonymous in the context of a defamation action. The Court disagreed.
“I was not taken to any authority for the proposition that s. 137.1 modifies the general obligation that parties who wish to participate in litigation must identify themselves both to the court and to those against whom they are asserting rights. On its face, s. 137.1 does not provide for this. Section 137.1 protects a subset of speech not by maintaining its anonymity, but by providing an expedited procedure for having the action dismissed,” Justice Miller explained.
Julia Lefebvre of Thomson Blackburn Lane Lefebvre LLP appeared for John Doe, while Jonathan G. Colombo and Amrita V. Singh of Marks & Clerk represented Glassdoor Inc. Christine Lonsdale of McCarthy Tétrault served as counsel for Echelon Environmental Inc. and Robert Rainford.