2010 September 14

Latner v. Doe, 2010 ONSC 4989

The Ontario Superior Court of Justice (Master) ordered that the plaintiff’s brother submit to an examination under oath as a non-party for the purpose of assisting the plaintiff to identify the defendant, John Doe, in relation to a website which described the plaintiff in unflattering terms and included a photograph of the plaintiff and his home. In previous proceedings, the plaintiff had obtained an order requiring both Google and Photobucket to release information to him in identifying John Doe. Both complied, resulting in the plaintiff obtaining the IP address from which John Doe made his postings. Subsequently, a further court order was obtained for the purpose of identifying the subscriber to the IP address, which the ISP identified as assigned to the plaintiff’s brother. The Court noted that non-party brother had been cross-examined on an affidavit sworn in another proceeding involving other family members and that when asked if he had created a blog about the plaintiff, denied doing so and denied even being aware of the blog. The Court held that the plaintiffs had satisfied the requirements for the order sought which were discussed in Irwin Toy v Doe, [2000] OTC 561. “The IP address from which the blog emanates is registered to [the non-party brother]. While he may not be able to state unequivocally who was responsible for this publication, he certainly is well placed to provide information as to who it could have been and to help sort this out. As his IP address was used, one would have thought he, too, would want to know how this could have happened without his authority or even his knowledge.”