Simon's Megalomaniacal Legal Resources

Injunctions - Norwich Orders

. Canadian Tire Corporation, Limited v. Eaton Equipment Ltd.

In Canadian Tire Corporation, Limited v. Eaton Equipment Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from summary judgments "in favour of CTC, against the appellants, jointly and severally".

Here the court considers a Norwich order:

[11] A Norwich order is an equitable remedy, available on a discretionary basis to assist with pre-trial discovery in certain circumstances: Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.).

[12] To obtain a Norwich order, the applicant must establish that: 1) a bona fide or reasonable claim exists; 2) the respondent is involved in or has information related to the alleged wrongdoing; 3) the respondent is the only practical source of the information; 4) the applicant is willing to indemnify the respondent for costs; and 5) the interests of justice favour disclosure: Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38, [2018] 2 S.C.R. 643, at para. 18.

[13] Norwich orders are a pre-trial remedy: Rogers Communications Inc., at para. 18; Amphenpol Canada Corp v. Sundaram, 2019 ONCA 932, 56 C.P.C. (8th) 307, at para. 23. In Seismotech IP Holdings Inc. v. Ecobee Technologies ULC, 2024 FCA 205, at para. 5, the Federal Court of Appeal described the remedy as a “type of pre-trial discovery which, inter alia, allows a rights holder to identify wrongdoers.” Similarly, in Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, 128 O.R. (3d) 64, at fn. 3, this court observed that a Norwich order “authorizes pre-action discovery”. This court’s jurisprudence does not suggest that a Norwich order is an available order on a motion within the appeal process.

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[15] I would add that, even if I had been persuaded that a Norwich order was available on a motion pending appeal, it would not be appropriate in this case. It is trite law that a party seeking an equitable remedy must come to the court with clean hands: see City of Toronto v. Polai, 1969 CanLII 339 (ON CA), [1970] 1 O.R. 483 (C.A.), aff’d 1972 CanLII 22 (SCC), [1973] S.C.R. 38. As noted above, a Norwich order is a remedy that may assist an applicant in the face of apparent wrongdoing. The pre-conditions of a Norwich order include proof of the need for the order “to enable action to be brought against the ultimate wrongdoer”: Mitsui & Co. Ltd. v. Nexen Petroleum UK Ltd., [2005] 3 All E.R. 511 [2005] E.W.H.C. 625 (Ch. D.) at para. 21, cited by GEA Group, at para. 79. The appellants have been found to have created a “fraudulent scheme.” While that decision is under appeal, Black J.’s findings of fact will be difficult to disturb given the standard of review.

. Voltage Pictures, LLC v. Salna

In Voltage Pictures, LLC v. Salna (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from the dismissal "(for the second time) [of] the appellants’ motion to certify this proposed reverse class proceeding".

Here the court discusses the test for a Norwich order:

[22] The appellants obtained contact information for Mr. Salna via a Norwich order. Named after the decision in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.), Norwich orders may be issued at the behest of a party, seeking to enforce its rights, to compel disclosure of information about alleged wrongdoers. To paraphrase the Supreme Court in Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38, [2018] 2 S.C.R. 643 [Voltage SCC], to obtain such an order, the applicant must show that: (1) they have a valid claim; (2) the holder of the information sought was in some way involved in the violation of the rights holder’s rights; (3) the requested disclosure is the only practical means for the rights holder to obtain the information sought; (4) the rights holder will compensate the information holder for reasonable costs associated with disclosing the information; and (5) the public interest in disclosure outweighs any legitimate privacy concerns: Voltage SCC at para. 18.

. Seismotech IP Holdings Inc. v. Ecobee Technologies ULC

In Seismotech IP Holdings Inc. v. Ecobee Technologies ULC (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal, this from an order of the Federal Court "dismissing the appellants’ motion for a Norwich order ... brought in relation to two simplified actions launched by the appellants against as of yet unidentified consumers who bought and installed smart thermostats in their homes, which, the appellants claim, infringe certain patents they own":

II. Norwich Orders

[5] A Norwich order is "“a type of pre-trial discovery which, inter alia, allows a rights holder to identify wrongdoers”" (Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38 at para. 18 (Rogers), citing Alberta Treasury Branches v. Leahy, 2000 ABQB 575 at para. 59, aff’d 2002 ABCA 101 (Leahy)). As this Court stated in Glaxo Wellcome PLC v. M.N.R. (C.A.), 1998 CanLII 9071 (FCA), [1998] 4 F.C. 439 (Glaxo), it is an equitable remedy of "“ancient origin”" (also known as a bill of discovery) which received "“renewed interest”" by the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Comrs., [1974] A.C. 133 (H.L.) (Norwich Pharmacal) (Glaxo at paras. 20–21).

[6] In the Federal Court, a Norwich order can be sought pursuant to that Court’s equitable jurisdiction (Glaxo at para. 33), or pursuant to Rule 238 of the Federal Courts Rules, S.O.R./98-106 (the Rules) (BMG Canada Inc. v. John Doe, 2005 FCA 193 at para. 23 (BMG)). Whatever the source of the Federal Court’s authority, the test for the issuance of such an order is the same (BMG at paras. 30–36). This test requires the plaintiff to show that:

a) a bona fide claim exists against the alleged wrongdoer;

b) the person from whom discovery is sought is: (i) more than an innocent bystander, meaning that that person is in some way involved in the matter in dispute; (ii) the only practical source of information available to the plaintiff; and (iii) reasonably compensated for the expenses, including legal costs, arising out of compliance with the disclosure order; and

c) the balancing of the public interests for and against disclosure of the information sought from that person favours disclosure.

[7] Only the bona fide and public interest criteria are at issue in this appeal.

III. Standard of Review

[8] Norwich orders are discretionary orders (Glaxo at paras. 24, 34; BMG at para. 28; Prandi v. Salisbury, 2024 BCCA 57 at para. 26 (Prandi)). As such, they are entitled to a high degree of deference, meaning that the role of this Court on appeal is not to substitute its discretion for that of the Motion Judge (Glaxo at para. 34; Prandi at para. 26). Our role is rather to determine whether the Motion Judge correctly directed himself on the applicable law and if so, whether he made a palpable and overriding error in applying that law to the facts (Housen v. Nikolaisen, 2002 SCC 33 at paras. 8, 10 and 36 (Housen); Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at para. 79; Prandi at para. 26).

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[43] The Motion Judge reasoned that the main goal of Norwich orders, which is to facilitate access to justice for right holders unaware of the identity of alleged wrongdoers, was equally important for defendants in cases where meaningfully defending an action would be out of reach, potentially resulting in unfair settlements or unopposed default judgments (Motion Judge’s Reasons at paras. 41–42, 46–47). In this case, "“special considerations”" were given to the fact that: (i) patent litigation is costly and requires expert evidence; and (ii) the action is directed at a large number of individuals, each having modest amounts at stake and lacking in technical skills (Motion Judge’s Reasons at para. 44).

At paras 9-41 the court usefully considers the 'bona fide' element, and at paras 42-65 the 'public interest' element, of the discretionary Norwich order test - citing several useful Norwich cases. These passages are prolonged but worth reading for anyone involved in such a motion.

. Securitas Technology Canada v. North West Construction

In Securitas Technology Canada v. North West Construction (Div Court, 2023) the Divisional Court considered the test for a Norwich order:

[43] A Norwich Order is a form of pre-trial discovery against third parties sought before trial, taking its name from Norwich Pharmacal & Others v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.): GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619. It will be granted where there is:

1) a bona fide claim or potential claim against the defendant;

2) the party from whom production is sought has a connection to the wrong beyond being a witness; and

3) the party from whom production is sought must be the only practical source of the needed information, and 4) the interests of justice favour the obtaining the documentation: Carbone et al v Boccia et al, 2023 ONSC 3625 (CanLII) at para. 26.

. Bluemoon Capital Ltd. v. Ceridian HCM Holding Inc.

In Bluemoon Capital Ltd. v. Ceridian HCM Holding Inc. (Ont CA, 2022) the Court of Appeal considered an appeal of a dismissal of a Norwich order:

[6] First, the application judge referenced and applied the correct legal principles under s. 96(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the relevant case law in determining whether to issue the exceptional remedy of a Norwich order. Among other cases, the application judge referenced this court’s articulation of the applicable factors in GEA Group AG v. Ventra Group Co. (2009), 2009 ONCA 619 (CanLII), 96 O.R. (3d) 481, at paras. 62, 91 and 1654776 Ontario Limited v. Stewart, 2013 ONCA 184, 114 O.R. (3d) 745, at paras. 47-59, leave to appeal refused, [2013] S.C.C.A. No. 225. The application judge determined that the appellant had failed to persuade him that it had a valid, bona fide or reasonable claim, that the requested pre-action discovery was necessary, and that the interests of justice favoured obtaining the disclosure.

....

[13] The purpose of a Norwich order is to facilitate access to justice by victims of suspected or unknown wrongdoers: 1654776, at para. 58; GEA, at paras. 49-53. As a result, and in order to ensure it is brought for a legitimate purpose, “[j]udicial treatment of the Norwich application procedure should reflect its nature as an equitable remedy”: 1654776, at para. 58.

[14] The application judge’s overarching assessment of whether it would be in the interests of justice to grant the extraordinary remedy of the requested Norwich order was properly informed by his consideration of the bona fides and the strength of the appellant’s action, as well as appellant’s need for the information.

[15] As a result of his findings, which were grounded in the record, the application judge determined that it would not be in the interests of justice to issue the requested order. We see no error in the application judge’s consideration of the evidence or his conclusions. The application judge’s determination not to grant the requested order involved the exercise of his discretion and is subject to appellate deference: Straka v. Humber River Regional Hospital (2000), 2000 CanLII 16979 (ON CA), 51 O.R. (3d) 1 (C.A.), at para. 53.