Norwich orders: pre-action discovery

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is a litigation lawyer practicing at Perley-Robertson, Hill & McDougall LLP in Ottawa, Ontario. He may be reached at 613.566.2823 or obourns@perlaw.ca.

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When a potential claimant has been wronged but lacks essential information necessary to commence a claim a Norwich Orders can be a useful tactic to fill in the blanks by compelling a third party to provide the claimant with the missing information.

The courts have held that Norwich orders are only appropriate when they are necessary for the following purposes:

  • to obtain the identity of a wrongdoer;
  • to evaluate whether a cause of action exists;
  • to plead a known cause of action;
  • to trace assets; or
  • to preserve evidence or property.

This free-standing right to discovery was resurrected by the House of Lords in Norwich Pharmacal & Others v. Customs and Excise Commissioners[1974] A.C. 133.

There are few Canadian decisions outlining the scope of Norwich orders in Canada and, in fact, the Court of Appeal stated that “[t]he nature and scope of the Norwich Pharmacal principle is far from settled”.

The Ontario Court of Appeal in Straka v. Humber River Regional Hospital, at paras. 27 and 32 equitable action for discovery lies in this jurisdiction and that it co-exists with the Rules of Civil Procedure.

The leading decision is the 2009 Court of Appeal decision in Gea Group AG v. Ventra Group Co. where the Court jurisdiction to grant such relief is grounded in s.96(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which states that “the [c]ourts shall administer concurrently all rules of equity and common law”.

The Court of Appeal cited Isofoton v. TD Bank with approval for the principle that the following factors are to be considered in an application for pre-action discovery in Ontario:

(i) Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;

(ii) Whether the applicant has established a relationship with the third party from whom the information is sought such that it establishes that the third party is somehow involved in the acts complained of;

(iii) Whether the third party is the only practicable source of the information available;

(iv) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, some refer to the associated expenses of complying with the orders, while others speak of damages; and

(v) Whether the interests of justice favour the obtaining of the disclosure.

The test is difficult to satisfy and, as such, there are very few examples of its successful application.  However, such orders may become more prevalent as they are useful tools in internet age.  In particular, a Norwich Order may be a helpful tool in securing the necessary information to pursue a defamation case against an anonymous defamer online.

For example, York University v. Bell Canada Enterprises, a 2009 decision of the Ontario Superior Court, the university brought a successful application for an order requiring that Bell and Rogers disclose information necessary to obtain identity and whereabouts of anonymous authors of e-mails and website postings.  In ordering the production of the information Strathy J. cited the following factors:

  • there was no other practicable source for the information;
  • reasonable efforts had been made, with no success to obtain information from other sources;
  • the cost of compliance for the respondents on the application was nominal and the applicant offered to cover those costs;
  • without the information sought the applicant would be left without remedy; and
  • disclosure of information was for limited purpose of enabling university to commence litigation, if so advised.

The unique facts surrounding anonymous internet postings make internet service providers and online blogs and message boards ripe for Norwich orders.

Owen Bourns is a litigation lawyer in Ottawa, Ontario.  He may be reached at 613.566.2823 or at obourns@perlaw.ca.

1 comments
alansmithh
alansmithh

There are few Canadian decisions outlining the scope of Norwich orders in Canada and, in fact, the Court of Appeal stated that “[t]he nature and scope of the Norwich Pharmacal principle is far from settled

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