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Injunctions - Norwich Orders. 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.
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