The Ontario Superior Court of Justice has dismissed a motion aimed at preventing a woman from disclosing the contents of specific text messages in a separate wrongful dismissal lawsuit against her former employer.
“People know or should know that whatever they write today may end up on the front page of tomorrow’s Toronto Star or go viral on Facebook or X,” the court said.
“I would have thought that people understood by now that they may be held accountable for what they write in text messages or other social media.”
Urgent order sought
The plaintiffs, who remained anonymous, sought an urgent order to stop the woman — OW — from disclosing the texts, citing concerns over privacy and relevance. In addition to wrongful dismissal, OW
The court noted several reasons for dismissing the action, including the plaintiffs’ failure to properly initiate the lawsuit under pseudonyms, their lack of a legal basis against OW, and their absence of standing regarding the disclosure of documents in another lawsuit.
Moreover, the court highlighted that the plaintiffs did not notify the defendant employer in the other lawsuit, despite the significant interest in the disclosure.
“The plaintiffs improperly commenced the action using pseudonyms without leave being sought or obtained,” the court said, emphasizing procedural missteps. It also pointed out, “the plaintiffs assert no cause of action against (OW) that could entitle them to an order prohibiting her from making disclosure as required by law.”
Embarrassment not a basis to prevent disclosure: Court
The action was primarily aimed at keeping certain text messages exchanged between the plaintiffs and OW, surrounding her dismissal, from being disclosed to her former employer.
“Even if the plaintiffs had standing to intervene in others’ litigation, the fact that they may be embarrassed is not a basis to prevent disclosure of relevant documents,” it said.
“In my experience, some of the most cogent evidence disclosed on discovery involves a fair degree of embarrassment or prejudice to someone. Lack of formality, loose or crude language, and the use of gifs and emojis may provide valuable context and clues to the thought processes of the writers unfiltered by formal office protocols. The weight to be provided to the contents is for the trier of fact.”
The court also raised concerns about the plaintiffs’ legal representation, noting a potential conflict of interest, as the law firm had previously represented the former employer in related matters.
“While perhaps not a reason to dismiss this claim yet, I have a very real concern that the plaintiffs’ law firm in this action acted previously as counsel to the former employer in the other lawsuit,” it said.
Misuse of pseudonyms
The ruling further addressed the misuse of pseudonyms in legal actions and the principles of open courts, underlining the necessity for transparency and proper legal procedures. The court criticized the plaintiffs’ approach, stating, “Starting a claim in a pseudonym and then trying to submit evidence outside the court filing process is circumventing the Rules and the open courts principle.”
“A party does not have the right to create her own de facto sealing order by ignoring the court’s processes and the applicable law,” it said.
Regarding the contested text messages, the court refrained from making a relevancy determination, deferring to the integrity and professionalism of legal counsel in the separate lawsuit.
“The process of document disclosure under the Rules of Civil Procedure relies upon the integrity and professionalism of counsel to the parties,” the court said.
Ultimately, the court found no legal basis to intervene in the document discovery process of another lawsuit, emphasizing the significance of disclosure obligations.
For more information, see Doe v. Whitford, 2024 ONSC 1224 (CanLII).
