2009 March 23

Warman v. Wilkins-Fournier, [2009] O.J.No. 1305

The Ontario Superior Court ordered that the defendants, owners and operators of an Internet website, produce relevant documentary information either identifying, or that could assist the plaintiff in identifying eight John Doe defendants in this case. Under the Ontario Rules of Civil Procedure, the defendants must provide an Affidavit of Documents which includes a list of names and addresses of persons who might reasonably be expected to have knowledge of the matters in issue in the action. The Court rejected the defence argument that the plaintiffs were obligated to establish a prima facie case and that disclosure should not be automatic on issuance of a statement of claim, distinguishing Irwin Toy v Doe, [2000] O.J. No. 3318 on the basis it concerned the obligations of a non-party and the plaintiff required a court order to compel the non-party to produce documents. The obligation is on the defendants to disclose and the plaintiffs were not required to prove a prima facie case. The court also noted: “The Irwin Toy case was decided in 2002 and cites no other case law. At that time [the judge] may have simply felt that the issue was too novel.” The court also concluded that there is no reasonable expectation of privacy in one’s IP address information, relying in part on R v Wilson, [2009] O.J. No. 1067 (2 February, 2008).