2019 February 22

Callidus Capital Corp. v. Baumann, 2019 ABQB 120

The Alberta Court of Queen’s Bench (Master) granted an application by the plaintiff to amend its statement of claim to include “post-statement of claim” online and email communications by the defendant.  The Court noted that the defendant initially denied using the online pseudonym “Cowboyupnewt” but admitted, when questioned by the plaintiff under oath during the discovery process, that actually was his pseudonym and he had made the postings complained of in the original statement of claim.   In the context of the amendments sought on this application, the Court stated: “New online postings appeared in the summer of 2018 by someone using the pseudonym ‘Bucklebunny’.  Another online user put it to ‘Bucklebunny’ that ‘she’ (a ‘buckle bunny’ is a rodeo ‘groupie’, and female) was actually ‘Cowboyupnewt’, being the pseudonym previously used by [the defendant].  ‘Bucklebunny’ claimed that ‘she’ is not ‘Cowboyupnewt’, although the protestation on its face seems suspicious.   The evidence and argument presented by Callidus Capital is that ‘Bucklebunny’ then wrote about things that bore a striking resemblance to things previously said by [the defendant] using the pseudonym ‘Cowboyupnewt’.  The phraseology, the topics, and the general message are so similar that Callidus Capital asserts there is a  rational basis for believing the ‘Bucklebunny’ is simply [the defendant] using another pseudonym.”  “[T]he apparent steps take to deceive the plaintiff as to [the defendant’s] use of the pseudonym ‘Cowboyupnewt’ do not favourably colour” the defendant’s opposition to the amendments sought by the plaintiff.  In the circumstances, the Court held that it was “proper for Callidus Capital to ask the Court to draw an adverse inference from the secrecy of what [the defendant] said in person to someone who has apparently read his on-line postings.”   In this case, the amendments were justified by the test in Balm v 3512061 Canada Ltd., 2003 ABCA 98  that “any evidence” will do to justify amendments generally.   In this case, the Court held there is some evidence (requiring an inference) that the “Bucklebunny” communications were authored by the defendant.