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
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
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:
identity of a wrongdoer;
evaluating whether a
cause of action exists;
When faced with a motion for a Norwich order, the court will
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
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
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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