



COURT OF APPEAL FOR ONTARIO

CITATION:
Echelon
    Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763

DATE: 20211026

DOCKET: M52789

Miller J.A. (Motion
    Judge)

BETWEEN

Echelon Environmental
    Inc. and Robert Rainford

Responding Parties

and

Glassdoor Inc.

Responding Party

and

John Doe

Moving Party

Julia Lefebvre, for the moving party

Christine L. Lonsdale, for the responding parties, Echelon
    Environmental Inc. and Robert Rainford

Jonathan G. Colombo and Amrita V. Singh, for the
    responding party, Glassdoor Inc.

Heard: October 7, 2021 by video conference

ENDORSEMENT

[1]

John Doe brings this motion to extend the time
    to serve and file a Notice of Appeal from an order of Dow J., dated June 7,
    2021, which denied his standing to appear as an anonymous party and make
    submissions on an Anti-SLAPP motion.

[2]

For the reasons that follow, the motion is
    dismissed.

Background

[3]

An anonymous poster, identifying as a former
    employee of Echelon, posted an online review of Echelon on the Glassdoor
    website. Echelon responded by bringing a defamation action against Glassdoor
    and the anonymous poster, referred to as John Doe. The identity of John Doe has
    not been revealed to either Echelon or the courts.

[4]

Glassdoor took the position that Does post was
    expression relating to a matter of public interest, protected by s. 137.1(3) of
    the
Courts of Justice Act
, R.S.O.
    1990, c. C.43
. Relying on this section, Glassdoor brought an
    Anti-SLAPP motion to have Echelons action dismissed.

[5]

Counsel for Doe advised in March 2021 that she
    intended to file a factum and make oral submissions on the Anti-SLAPP motion.
    Echelon objected.

[6]

The parties appeared before Dow J. on June 7,
    2021. Dow J. was unable to hear the substance of the Anti-SLAPP motion that
    day, and he adjourned it to July 28. He was able to deal with two
    preliminary matters: a sealing order and the issue of Does right of
    participation. Dow J.s endorsement noted that Doe had not filed a Notice of
    Intent to Defend, and ruled that Doe had no standing and could not be heard
    from in the Anti-SLAPP motion, subject to any formal, on the record appearance
    by counsel for the John Doe and any step taken in the litigation as a result. Thirty
    days elapsed, and Doe did not appeal.

[7]

The Anti-SLAPP motion was returned before Pollak
    J on July 28. Counsel for Doe appeared, intending to reargue the issue of
    standing. However, Pollak J. adjourned all matters related to the Anti-SLAPP
    motion to Monday, August 16, 2021, to be heard by Dow J.

[8]

On August 13, sixty-seven days from the date of
    Dow J.s order denying Doe standing to appear at the Anti-SLAPP motion, Doe
    served a motion record seeking to extend his time to serve and file a Notice of
    Appeal. Counsel for Doe did not seek an adjournment of the Anti-SLAPP motion
    itself, which proceeded as scheduled on August 16, and was ultimately dismissed
    by Dow J. the day before this motion was heard. Glassdoors counsel advised
    this court that it intends to appeal the dismissal. Doe continues to press his
    motion to extend time to serve and file a Notice of Appeal from Dow J.s order
    denying him standing.

Analysis

[9]

This court will extend the time to serve and
    file a Notice of Appeal if an extension is required by the justice of the case:
2363523 Ontario Inc. v. Nowack
, 2018 ONCA 286, at para. 4. The court
    will generally consider the following factors:

1.

Whether the appellant formed a
bona
    fide
intention to appeal within the relevant time period;

2.

The length of delay in filing and the
    explanation for it;

3.

Any prejudice that would be caused to the responding
    party by allowing the motion;

4.

The merits of the proposed appeal.

See
Howard v. Martin,
2014
    ONCA 309, 42 R.F.L. (7th) 47, at para. 26;
Leighton v. Best
, 2014
    ONCA 667, 20 C.B.R. (6th) 326, at para. 1.

[10]

No one factor decides the outcome. All factors
    must be considered, but how they bear on what justice requires is context-specific:
    see
Enbridge Gas Distribution Inc. v. Froese
, 2013
    ONCA 131
, 114 O.R. (3d) 636, at para. 15;
Monteith v. Monteith
, 2010
    ONCA 78
, at para. 20.

Intention to appeal

[11]

Counsel for Doe argues that he formed an
    intention to appeal very shortly after appreciating the finality of Dow J.s
    decision.

[12]

Counsel for Echelon argues that the finality of Dow
    J.s decision was obvious on its face, and Doe waited to appeal as part of a
    tactical decision to make another attempt at getting a standing order from another
    judge. It was not until the collateral attack failed, and Doe realized that the
    motion would be returned before Dow J., that Doe decided to proceed with the appeal.
    Doe admits in his written submissions to this court that he only moved to
    appeal after it was clear that Justice Dows decision could not be challenged
    at the new hearing before Pollak J.

[13]

I agree that Dow J.s order was clearly final on
    its face. Dow J.s order states that if Doe did not identify himself, he would
    have no standing and no right of participation. Nothing that happened
    subsequently could have caused Dow J.s order to crystalize at a later date,
    as Does counsel contends. The actions of Doe given the obviousness of the
    finality of Dow J.s order and the absence of any change of circumstances suggest
    that Doe had no intention to appeal until well after the time period had
    expired, and that his delay was the result of a litigation strategy that
    failed.

[14]

Even on Does version of events, he did not form
    an intention to appeal during the relevant period. Doe claims to have only
    realized the finality of the order after Pollak J.s adjournment, several weeks
    after the deadline to appeal had expired. Therefore the only intention he could
    have formed during the period before the deadline expired was an intention to challenge
    Dow J.s order at the hearing before Pollak J., which is not the same as an
    intention to appeal: see, by analogy,
Cunningham v. Hutchings
, 2017
    ONCA 938, at paras. 13-16.

The length and explanation for the delay

[15]

The 67-day delay is not long, but Does
    explanation for it is weak. His explanation rests on his misunderstanding as to
    whether Dow J.s order was final. The salience of the explanation is diminished
    by the orders obvious finality.

Prejudice to the Responding Parties

[16]

In general, this court considers only prejudice
    caused by the delay in filing a notice of appeal, not prejudice that could be caused
    by the outcome of the appeal:
40 Park Lane Circle v. Aiello,
2019
    ONCA 451, at para. 6. But in this case, the two considerations merge, and a
    proper account of the justice of the case requires me to have regard to both.
    Echelon occupies a far more difficult litigation position because of the delay
    than it would have occupied had Doe filed in a timely manner.

[17]

Had Doe had brought his appeal in a timely manner,
    the Anti-SLAPP motion would have been adjourned, or Does appeal expedited, so
    that the question of standing would have been resolved prior to the hearing of
    the Anti-SLAPP motion.

[18]

Instead, Echelon will have to litigate Glassdoors
    appeal of the Anti-SLAPP dismissal on its merits, while simultaneously
    litigating an appeal of Does standing. If Echelon prevails against Glassdoor
    but Doe is successful, the Anti-SLAPP motion will have to be heard again on a
    new record involving Doe  effectively invalidating the victory against
    Glassdoor.

Merits of the Appeal

[19]

Doe argues that Dow J. made errors of law (1) in
    determining that Doe had no standing, and (2) in providing insufficient
    reasons.

[20]

Doe asserts private interest standing as a named
    defendant in the action, and argues that the Anti-SLAPP motion (or the appeal
    of it) could affect Does rights by resulting in the action being dismissed.

[21]

Doe and Glassdoor argue that s. 137.1 serves to
    protect anonymous speech, and that part of protecting anonymous speech is
    keeping it anonymous in the context of a defamation action.

[22]

I was not taken to any authority for the
    proposition that s. 137.1 modifies the general obligation that parties who wish
    to participate in litigation must identify themselves both to the court and to
    those against whom they are asserting rights. On its face, s. 137.1 does not
    provide for this. Section 137.1 protects a subset of speech not by maintaining
    its anonymity, but by providing an expedited procedure for having the action
    dismissed.

[23]

The claim made is not only novel, but seems contrary
    to well-established principle, and without support in law.

[24]

Doe is on slightly firmer ground with the
    argument that the reasons that were provided were insufficient. The reasons
    were brief and conclusory. But to be fair to the motion judge, the ruling he
    was asked to make was obvious. The difficulty on this motion is that I have no
    evidence of what argument the motion judge was invited to consider. Doe filed
    no materials and there is no transcript of the hearing. Even assuming the
    argument was the same as the one outlined before me  that the Anti-SLAPP
    provisions protect the anonymity of speech  it is nothing more than an
    assertion and need not have detained the motion judge.

The justice of the case

[25]

There are no further considerations that have
    not already been addressed. Doe made a strategic procedural choice. That
    failed, and when Doe decided to appeal, he did so at a time and in a manner that
    - if successful - would result in significant expense and repetition of matters
    already litigated. On balance, the justice of the case does not require this
    court to grant an extension.

Conclusion

[26]

The motion for leave to extend time is
    dismissed. The responding party is entitled to its costs of the motion. If the
    parties are unable to settle the quantum among themselves, I will receive brief
    submissions not exceeding three pages in addition to a bill of costs, to be
    filed with the court within 14 days of the date of this decision.

B.W. Miller J.A.


