We've discussed pre-trial remedies directed at the defendant. Now I'd like to turn to an extraordinary measure involving third parties.
A Norwich order is a pre-action discovery mechanism that compels a third party to preserve and provide evidence in its possession to a potential plaintiff for use in litigation. This discretionary remedy is a valuable tool in situations where critical information is unknown and is necessary to determine whether litigation should be commenced.
A Norwich order might be sought in a scenario where a bank is in receipt of funds allegedly procured by fraud or where the third party is an internet service provider which has facilitated the dissemination of defamatory emails.
Essentially akin to pre-litigation discovery, the courts can be reluctant to grant a Norwich order except in extraordinary circumstances.
As the Ontario Court of Appeal emphasized in GEA Group AG v. Flex-N-Gate Corporation, Norwich orders are intrusive and should only be granted in exceptional cases. The moving party must satisfy the court that the information sought is for a legitimate objective such as:
- obtaining the identity of a wrongdoer;
- evaluating whether a cause of action exists;
- tracing assets; or
- preserving evidence or property.
When faced with a motion for a Norwich order, the court will consider whether:
- the moving party has shown a valid, bona fide or reasonable claim;
- the moving party has established that the third party from whom information is sought is somehow involved in the acts complained of;
- the third party is the only practicable source of the information; and
- the interests of justice favour the obtaining of disclosure from the third party.
The court is required to balance the benefit to the moving party of revealing the desired information against the prejudice to the third party in releasing the information. The court will consider the nature of the information sought and the degree of confidentiality accorded to the information by the third party. Due to the nature of the order, the court must also consider constitutional issues, such as freedom of expression.
In my next blog post, I will discuss mechanisms for procuring evidence in Ontario for litigation proceeding in a foreign jurisdiction.