When a woman came forward to leaders of the Southern Ontario megachurch The Meeting House with allegations that her former pastor had sexually abused her, the investigation that followed forced the pastor to resign and prompted a reckoning that has seen attendance at the church dwindle.
But for the woman, who has adopted the name Hagar in the media – the church kept her identity confidential and it is now protected by a publication ban – another painful saga was about to begin. Some of the pastor’s followers began threatening to reveal her identity, a court filing says. Soon, someone posted a YouTube video sharing Hagar’s real name, and pseudonymous accounts began popping up on multiple online platforms and threatening to out her.
“The scrutiny by what was once my community, my place of refuge and safety, is becoming unbearable,” Hagar, who took her pseudonym from a slave mentioned in the Bible, said in an affidavit filed with the Ontario Superior Court of Justice last summer.
What followed in court would show the power of a somewhat obscure legal tool to defend against defamation and harassment on digital platforms in Canada. Hagar and her lawyer successfully used what is known as a “Norwich order” to compel YouTube, Facebook and Reddit to share potentially identifying details behind the accounts. These may soon allow her to confront the accounts’ owners with further legal action.
Cases such as Hagar’s show that Norwich orders can be highly effective in battling online trolls in Canada, by forcing tech platforms to effectively withdraw users’ privacy privileges when a court decides the public interest in disclosing their information outweighs their need for privacy.
Hagar’s lawyer, Ivanna Iwasykiw, a Toronto-based associate with Jellinek Ellis Gluckstein, a law firm that works with sexual-abuse survivors, said the Norwich order was critical for the case. “I cannot overstate its importance, because it is the only way that most platforms will give you very necessary information that you have no other way of getting,” she said.
These kinds of orders are being used “more and more” to unmask trolls in Canada for further legal action, said Laura MacFarlane, a Calgary-based partner with Field LLP who has been drawing attention to the legal mechanism for a decade. “We see lots of social-media platforms and identity-concealing apps that really have contributed to the ability of people to hide behind their identities,” which can hinder lawyers’ ability to bring legal action against them, she said.
Norwich orders have come a long way from their origins: a British chicken-feed patent dispute. In the 1970s, a company called Norwich Pharmacal discovered that someone was importing a chemical it had patented for use as a feed additive, but customs officials wouldn’t disclose who was doing it. The British House of Lords agreed that, even though the customs officials weren’t directly involved in the case, they could be compelled to disclose the importer’s identity to propel the case forward.
Canadian lawyers have adapted Norwich orders for use in this country’s legal system, including for cases related to fraud and copyright. In the latter situation, lawyers have used the orders as they have sought to remove copyright-infringing content online, or to take action against people who posted the content. One such case was argued before the Supreme Court of Canada, which decided in 2018 that a film-production company should reimburse Rogers Communications Inc. for “reasonable costs” it took on by complying with a court order to find and disclose information about copyright violators.
Norwich orders generally must pass a multipart test to determine if a third party should be forced to disclose information relevant to a legal dispute. That test includes proving that the third party is the only reasonable source of the undisclosed information, and, as in the case of the original Norwich order, that the information’s release is for the sake of justice.
“You do need to convince the court, with fairly clear and compelling evidence, that the use of such an extraordinary remedy is justified,” said Jordan Deering, a Calgary-based partner with DLA Piper who focuses on corporate crime and investigations. “So it’s certainly not going to be given in every single case.”
In a prominent case last year, an Ontario judge ruled that the Waterloo, Ont., wireless company TextNow Inc., which allows customers to have anonymous accounts, needed to reveal the information of users who had allegedly harassed and made death threats toward employees of the video-game studio Bungie Inc., the developer of titles such as Destiny 2.
“My experience is that these types of circumstances appear to be more and more common,“ Ms. Deering said. “As these facts present more frequently, I think the relief is going to be seen more frequently.”
Hagar’s case was complex. She has alleged in court filings that the pastor, Bruxy Cavey, began sexually abusing her as he counselled her professionally when he was 46 and she was half that age. “I was in crisis and trusted him, and I did not, nor could I, consent to a sexual relationship with him,” she said in an affidavit.
The church launched an investigation into Mr. Cavey after Hagar reported the allegations to Meeting House leadership in late 2021. The investigation, the church said last March, revealed that their relationship “constituted an abuse of Bruxy’s power and authority as a member of the clergy, and amounted to sexual harassment.” Mr. Cavey was asked to resign; in a since-deleted blog post, he said that the “adulterous relationship” had been his “greatest failure.”
In June, the Hamilton Police Service arrested Mr. Cavey and charged him with sexual assault.
Yet Mr. Cavey still had supporters, some of whom were infuriated that the scandal had so deeply changed their church.
Following The Meeting House’s investigation, social-media accounts began sending threats to the church and a former pastor who was supportive of Hagar. The messages, copies of which are included in court documents, said Hagar’s identity would be revealed if the church and former pastor did not delete posts that supported her claims.
Soon afterward, someone uploaded a pair of videos to YouTube that identified Hagar and contained “confidential, personal, and defamatory statements,” she wrote in an affidavit. One video was then posted on Reddit and Facebook. The Globe and Mail attempted to send messages to the accounts referenced in this article, but they were either shut down, suspended or not able to receive messages.
Though Hagar had some success in blocking the video in Canada and getting at least one account suspended, she wrote that the users’ “constant, unyielding efforts are causing me deepening anguish every day they continue.”
By then, Hagar had already begun working with Ms. Iwasykiw, who was sending cease-and-desist letters to every account she could find. After hitting many walls, she decided to ask the court for a Norwich order.
It was her first time trying to use the legal tool, but she felt confident in her chances after seeing a 2016 decision by the Supreme Court of Nova Scotia that compelled Facebook to reveal identifying information for accounts that allegedly defamed a civil servant and local politician.
In July, she appeared before Justice Grant Dow in Toronto to make her case. According to court documents, none of the tech platforms brought anyone to the hearing to respond. On July 28, Justice Dow granted the Norwich order: The platforms would have to remove the offending content and pass on any relevant information they could, including registration e-mails, internet protocol (or IP) addresses and other information about devices used to access the accounts that made posts containing information about Hagar.
Ms. Iwasykiw said all three platforms agreed to hand over the details, though YouTube challenged the breadth of the information it would need to provide. Hagar agreed with YouTube’s argument, and a court approved it in late December.
In an e-mail, YouTube confirmed that it had initially challenged the order’s scope, but had since complied with the varied order. “Our legal team reviews each and every request to make sure it satisfies applicable laws and we frequently push back when a request appears to be overly broad or doesn’t follow the correct process,” spokesperson Zaitoon Murji said. Ms. Iwasykiw said she may receive further information from YouTube. In e-mails, both Reddit and Facebook said they comply with court orders.
But there are limits to Norwich orders’ effectiveness. Tech platforms can only provide the information they actually have. This doesn’t always include real names. In some cases, a platform might be able to provide little more than an IP address, which on its own generally reveals only the identity of the company providing a user with internet service.
Now armed with limited information, including IP addresses and an e-mail address “that appears to go nowhere,” Ms. Iwasykiw is considering applying for a Norwich order again, this time to compel internet service providers to provide information about the IP addresses.
“As you can imagine, [Hagar is] frustrated at the slow progress,” Ms. Iwasykiw said. She may now have to wait for the court to decide on her next request.
But Ms. Iwasykiw is optimistic. “I expect that when we get to the end of the process we’ll get the answers that we need,” she said, “and this will stop.”