2011 January 5

Hutchens v. Scam.com, 2011 ONSC 56

The Ontario Superior Court dismissed an application by the plaintiff for an interlocutory injunction requiring the defendant Hillier to remove all video postings he has placed on www.youtube.com that have any content concerning the plaintiffs. The Court also refused to grant an interlocutory injunction restraining Hillier from broadcasting, transmitting, publishing or posting on the internet or the worldwide web and/or from distributing in any manner whatsoever any information concerning the plaintiffs. The Court was not satisfied that the plaintiffs have met their burden to prove that the defendant Hillier’s words are “clearly defamatory and impossible to justify”. “…Hillier is but one of many people, identified and unidentified, who are discussing [the plaintiff] and his businesses on the Internet and in the media at large. Strangely, the plaintiffs have chosen to invest their time and money in pursuing one person [the defendant] Hillier.” Although the court did grant an order joining Hillier as a defendant to the action, the judge dissolved an ex parte order made in March, 2009 prohibiting SCAM.COM from posting “derogatory statements or imputations concerning the plaintiffs and granting an Anton Piller order permitting the plaintiff’s to enter and inspect the premises of SCAM.COM. The Court held that the plaintiffs had abused the extraordinary relief granted in the March 2009 orders by attempting to enforce the order against Hillier, who was not a defendant and had never been an officer, director, employee, contractor or agent of SCAM.COM, and was not one of the anonymous posters the plaintiffs were seeking to identify with the March 2009 orders. “The plaintiffs continued to misuse the March orders when they represented to Internet sites (other than SCAM.COM) that the orders applied to them …The March orders were issued 20 months ago and the plaintiffs have not moved this action ahead to trial … It is apparent from [an affidavit of the plaintiff] and the misuse of the March orders that the plaintiffs treated the interim injunctive relief as a sword and acted like there was a final determination on the merits.” The Court noted that a plaintiff who obtains an interlocutory injunction must proceed expeditiously to trial so as to limit as much as possible the time period during which the defendant is impacted by the order.