Peeking Behind the Curtain: Using Norwich Orders to Uncover Information

In an previous edition of our newsletter, my colleague and Cambridge founding partner, Chris MacLeod, wrote an article discussing the use of Mareva injunctions to prevent defendants and others from dissipating assets before judgment can be obtained.

But what happens when a client doesn’t even know where to begin?

When the Trail is Cold  

Imagine a newly retained client tells you that they wrote a cheque to an individual for what appeared to be a legitimate investment – only to later discover it was a fraud. All the client knows is the individual’s name as provided to them and that the cheque was deposited into a bank account overseas to a financial institution in Ontario, before being transferred overseas.

In such a case, your first instinct will likely be to determine the relationship of the accountholder and the individual your client dealt with, and to trace the movement of the funds if no longer held by the original receiving institution.

Or consider another scenario: a client is being harassed by emails sent from a pseudonymous account and potentially defamatory content has been posted about them on a private forum

Your focus here will likely be twofold, to both identify  the party behind the emails and posts, but also to consider whether the content on the private forum gives rise to an actionable claim.

In both these examples and similar situations, before considering any form of litigation, you will first need to take steps to investigate the matter and uncover information to inform your legal strategy.

Enter the Norwich Order.

The Role and Purpose of a Norwich Order

Norwich Orders originated in equity and were later recognized by the common law Courts of England, most notably in the seminal case of Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] AC 133.

The remedy has since been adopted in Ontario as a form of pre-litigation discovery that allows a prospective plaintiff to obtain relevant information from third-parties – typically non-parties to the wrongdoing.

In Ontario, a Norwich Order can be used to:

• Identify a wrongdoer/defendant;
• Ascertain if a viable cause of action exists;
• Trace assets or transfers of funds; and
• Preserve evidence/property.

The Legal Test to Obtain a Norwich Order in Ontario

The Ontario Court of Appeal outlined the relevant test in GEA Group AG v. Ventra Group Co., 2009 ONCA 619 (<https://canlii.ca/t/25883>).

To obtain a Norwich Order, the prospective plaintiff must demonstrate:

1. A bona fide or reasonable claim, including the specific purpose for seeking the information (e.g., identifying a wrongdoer or assessing the viability of a claim);
2. A relationship between the third party(ies) and the alleged wrongdoing, demonstrating that the third party(ies) were involved in or has knowledge of the acts under investigation;
3. That the third party(ies) is the only practical source of the information;
4. That the third party(ies) can be indemnified for any costs incurred to comply with the order sought; and
5. That the interests of justice favour granting the Order, based on a balancing of the plaintiff’s need for disclosure against the burden on the third party(ies).

The analysis is fact-driven. While the granting of Norwich Orders is not as rare as it was historically, case law in Ontario has heavily emphasized that the construction of a proposed Norwich Order should be done in a manner that is both narrow and proportionate to the relief sought.

Practical Considerations in Moving for a Norwich Order

Norwich Orders have become increasingly common in the digital age, where transactions and wrongdoing often occur anonymously,  across borders and wrongdoers actively conceal their identities.

Effective affidavit evidence is critical to successfully move for a Norwich Order. The supporting affidavit should:

• Address each element of the legal test;
• Outline the steps already taken to obtain the information; and
• Where appropriate, include input from experts, such as IT or cybersecurity specialists.

Courts will not rubber-stamp a Norwich Order based solely on speculation or to empower a fishing expedition. They are mindful of privacy rights and statutory obligations (such as those under PIPEDA) that may affect third-party disclosure.

To improve chances of success in achieving a Norwich Order, the affidavit proffered by prospective plaintiff’s should:

• Narrowly define the scope of information sought;
• Consider seeking the Order with a confidentiality or sealing provision if sensitive data is involved; and
• Be prepared to provide an undertaking as to damages, which is commonly required.

Taking these steps may not only win the Court’s favour but may also increase the likelihood of cooperation from the respondent third party(ies).

Conclusion

While historically rare and exceptional, Norwich Orders are increasingly used in Ontario civil and commercial litigation given the digital nature of the world we live in.

With strategic use, sound legal grounding, and well-prepared evidence, Norwich Orders can help prospective plaintiffs pave the way from uncertainty to actionable recourse.