In the recent decision of Caryk v Karlsson,1 the Ontario Superior Court of Justice refused to compel Erik Karlsson's wife to provide evidence relating to allegations that she was cyberbullied by the partner of one of her husband's former teammates. In doing so, Mullins J. provided an overview of the Norwich Order remedy, and found that the interests of justice would not be well served by granting such an Order. This decision is noteworthy because it confirms that the Norwich Order is an extraordinary form of relief that will only be granted in very limited circumstances. This holds true even in cases dealing with allegations of cyberbullying.
The case involved the partners of Mike Hoffman and Erik Karlsson, two prominent professional ice hockey players of the National Hockey League (NHL). Mike Hoffman currently plays for the Florida Panthers and was previously a member of the Ottawa Senators hockey club. Erik Karlsson is the former captain of the Ottawa Senators and now plays for the San Jose Sharks. The facts of the case arose while both players were members of the Ottawa Senators.
The Applicant in this case, Monika Caryk, was the fiancé of Mr. Hoffman. She, along with the Respondent, Melinda Karlsson, were previously part of a social circle associated with the men who played for the Ottawa Senators. Mrs. Caryk admitted to making some unflattering observations about the Karlssons following their engagement. However, she speculated that these comments were "twisted" by other NHL wives and partners before reaching Mrs. Karlsson.
On March 19, 2018, Mrs. Karlsson gave birth to a son. Tragically, the child was stillborn. In the following days, Ms. Caryk received hostile texts and e-mails from four women accusing her of cyberbullying Mrs. Karlsson and requesting that she stay out of events involving Mrs. Karlsson. In particular, Ms. Caryk was being accused of posting harmful comments about Mrs. Karlsson on a widely known gossip website. Around the same time, it was reported that an anonymous user made a derogatory comment on Mr. Karlsson's Instagram post mourning the death of his son.
On June 12, 2018, it was reported that Mrs. Karlsson had sworn a peace bond application alleging that Ms. Caryk had threatened her and her husband. It stated that Ms. Caryk had posted over 1,000 negative and derogatory statements about Mrs. Karlsson as a professional. The peace bond application was not served upon Ms. Caryk and was expired at the time of the decision.
In an attempt to clear her name, Ms. Caryk brought an application to the Ontario Superior Court of Justice for a Norwich Order. The purpose of the application was to compel Mrs. Karlsson to disclose and provide all information relevant to her allegations of cyberbullying against Ms. Caryk. Through the granting of the Order, Ms. Caryk sought to obtain information that would help her identify the individuals responsible for the defamatory posts mentioned in the peace bond application.
Principles for GrantingNorwich Orders
In the judgment, Mullins J. provided an overview of the law regarding Norwich Orders. A Norwich Order is an equitable remedy that compels third parties to disclose or provide evidence that is necessary to commence a lawsuit. Sometimes referred to as discovery before a proceeding, this extraordinary remedy may be granted to enable the evaluation of a cause of action, identify a wrongdoer, or preserve evidence.2
The test for granting a Norwich Order was quoted as follows:
In deciding whether to grant the relief requested by Ms. Caryk, Mullins J. cited the Ontario Court of Appeal's decision in GEA Group AG v Ventra Group Co. et al.3 as the leading case regarding Norwich Orders. The test for granting a Norwich Order was quoted as follows:
- Has the applicant provided evidence sufficient to raise a valid, bona fide, or reasonable claim?
- Has the applicant a relationship with the person from whom the information is sought such that it establishes that she is somehow involved in the acts about which there is a complaint?
- Is the person the only practicable source of information available?
- Can the party be indemnified for costs of the disclosure?
- Do the interests of justice favour an order of disclosure?
Mullins J. also reviewed the decision of York University v Bell Canada Enterprises,5 where the Ontario Superior Court of Justice explained that Norwich Orders are an extraordinary, equitable, discretionary, and flexible remedy that should be exercised with caution.
Application to the Case
Considering the circumstances of the case, Mullins J. held that the interests of justice would not be well served by granting a Norwich Order.6 His ruling was based largely upon the state of affairs between the two women and the tenuous likelihood of claims being effectively advanced.7 Mullins J. took note of the fact that Mrs. Karlsson was the object of the allegedly defamatory online posts, and that Ms. Caryk did not seek disclosure from the women who initially accused her of cyberbullying.8 He also stated that Ms. Caryk's claims arose from accusations contained in an expired peace bond application, and that there was no evidence that Ms. Caryk was responsible for the defamatory online posts.9 He then concluded that information about the authorship of those posts would be best obtained from other sources, such as websites or service providers.10
In refusing to order costs, Mullins J. stated that while courts must respond appropriately to the new legal challenges raised by online communication, singular sensitivity to incautiously expressed words online should only involve courts in exceptional circumstances.11
Conclusions and Implications
This case serves as a reminder that Norwich Orders are purely discretionary remedies that are rarely awarded. It also gives the impression that courts take a flexible approach in applying the test for granting this type of relief. Such a remedy may not be attainable even in the face of allegations of cyberbullying. With the increased use of online and social media as platforms for cyberbullying, it will be interesting to see whether courts will become more inclined to grant Norwich Orders when one's reputation and character are at stake.
1 2018 ONSC 5739 [Caryk].
2 Ibid at para 15.
3 96 OR (3d) 481 [GEA].
4 Caryk, supra note 1 at para 16.
5 2009 CanLII 46447 (ON SC) [York University].
6 Caryk, supra note 1 at para 25.
8 Ibid at para 21.
9 Ibid at para 22.
10 Ibid at para 24.
11Ibid at para 26.
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