Ontario Superior Court, Warman v Fournier et al, 2010 ONSC 2126 (Div Ct)

(1) The plaintiff sued the operator of a message board and eight anonymous participants who allegedly posted defamatory statements. In accordance with the Rules of Civil Procedure (76.03), the plaintiff sought an order requiring the intermediary to reveal the identities of those participants. 

(2) The court ruled that disclosure of users’ identities should not be automatic. Rather, the unknown user’s expectation of privacy and the freedom of expression must also be weighed. Four factors that should guide the court are: 1) whether the unknown users could have a reasonable expectation of anonymity given the context; 2) whether the complaint has established a prima facie case against the unknown wrongdoers and is acting in good faith; 3) whether the complaint has taken reasonable steps to identify the unknown party; and 4) whether the public interests favouring disclosure outweigh the legitimate interest of freedom of expression and right to privacy (para 34). 

(3) The prima facie standard under Rule 76.03 is thus lower than the bona fide standard required for a Norwich order (see York University v Bell Canada below). Given that a defamed plaintiff may compel an intermediary to disclose subscriber information either by going through a pre-action discovery process or by applying for a Norwich order, it has yet to be seen whether the court will reconcile these two standards in the future.