On January 13, 2020, the Ontario Superior Court of Justice (ONSC) released its decision in Theralase Technologies Inc. v. Lanter, 2020 ONSC 205. The decision is the first reported in Ontario in which default judgment has been entered against anonymous online defendants who could not be identified by the plaintiffs.

Background

The plaintiffs, a pharmaceutical company and two of its officers, commenced a defamation action with respect to derogatory comments made by anonymous internet posters on Stockhouse.com, a website designed for investors. The posters used a variety of pseudonyms to post these comments to the corporate plaintiff’s page on the website, where they were viewable by the public.

The plaintiffs had previously obtained a court order forcing Stockhouse.com, which was not a party to the action, to reveal the twelve defendants’ true identities. Due to “technical problems”, the website could only provide the email addresses used to create their profiles.

The plaintiffs then obtained another order for substituted service on the defendants via their email addresses and Stockhouse.com accounts. One defendant responded, one of these emails bounced back, and there was no response of any sort from the remaining ten defendants. They nevertheless had the defendants (aside from the one who responded) noted in default and moved for default judgment against them.

Default judgment against anonymous defendants

The Court noted that while civil claims are frequently initiated against unnamed “John Doe” defendants, it is unusual for judgment to be entered against a party whose name is unknown. The closest analogous case decided in Ontario was Manson v. John Doe, 2013 ONSC 628, but the anonymous defendant in that proceeding had responded to an email from the plaintiff’s lawyer before default judgment was obtained against him/her.

Drawing on the reasoning of the U.K. Supreme Court in Cameron v. Liverpool Victoria Insurance Co. Ltd., [2019] UKSC 6, the Court held that so long as the form of service “can reasonably be expected to bring the proceedings to the attention” of a defendant, the Court has jurisdiction over the defendant regardless of how they are identified in a pleading. The Court added that since the defendants had created anonymous profiles to make their defamatory remarks, they could hardly complain if they failed to notice legal documents that were sent directly to those profiles.

The Court went on to grant default judgment against the pseudonymous defendants, in amounts ranging from $10,000 to $65,000 per defendant.

Commentary

The core take-away of this decision is that users of pseudonymous online profiles – a large and growing source of defamatory comments – are not insulated from default judgment. Assuming some form of substituted service can be made on a social media profile, it appears possible to have default judgment entered even if the identity of the person behind the profile is unknown and never responds to attempted service.

However, as a practical matter, plaintiffs will find it difficult to enforce judgments against unidentified defendants. The Court alluded to this difficulty in this decision in stating that no findings were made “about how any judgment is to be enforced against a person who is currently identified only by a pseudonym.”