Canada: Practical Tips For Obtaining A Norwich Order

Have you been wronged, but are unsure by whom? There's an app for that! An application, that is...for a Norwich Order.

In the age of the internet, it is increasingly easy to commit wrongs anonymously. Violations of legal rights via the internet can take many forms. From defamation to copyright infringement to breach of confidence and contract, when a wrong has been committed against you or your company but the wrongdoer's identity is unclear, the first step is to obtain that information. If an innocent third party such as a website has enabled the perpetrator to commit the wrong, a Norwich Order can be sought.

A Norwich Order1 is an order for pre-action discovery—it is a way to compel information before you commence a claim.

The good news is, applications for Norwich Orders are often unopposed. While most websites will not provide the identifying information of a wrongdoer in the absence of a court order, they will often choose not to oppose the order. Therefore, as a practical matter, reach out to the website's legal counsel early on in the process with a view to negotiating a form of order that the website will not oppose.

Often, a discussion with website's counsel will also inform you of the type of identifying information that you will likely be able to obtain through a Norwich Order. For example, certain websites require posters to enter their name(s), e-mail address(es), and other information before posting information. While you might not obtain a poster's true identity by gaining this information (we all know that the name(s)/address(es) might not be genuine), if you do, then you know who to sue. If not, as long as you get an e-mail address, you will at least have a means by which to contact the poster—perhaps to send a "cease and desist" letter as an initial step.

If the information that you are able to obtain through a Norwich Order is likely to be more vague, for example, only an IP address, then you may have to be prepared to bring more than one application. Once you obtain the IP address of the wrongdoer, you will then have to apply for another Norwich Order against the applicable internet service provider to discover the identity behind the address. Therefore, the knowledge of the type of information you are likely to obtain if the application is successful will help you weigh the importance of discovering the wrongdoer's identity with the potential costs of obtaining it.

In deciding whether or not an application for a Norwich Order is likely to be successful, consider the following questions:

  1. Do you have sufficient evidence to show that you have a valid, bona fide or reasonable claim against the wrongdoer?
  2. Is the third party from whom the information is sought somehow involved in the acts complained of?
  3. Is the third party the only practicable source of the information available?
  4. Can the third party be indemnified for out of pocket costs to which it may be exposed because of disclosure? And
  5. Do the interests of justice favour disclosure?2

If the Court agrees that the answer to all of the above is yes, then the test for a Norwich Order has been met.

Although all five of the above factors warrant careful consideration, factors 1-4 are the simplest to assess. As with many legal tests, the "interests of justice" branch (factor 5) will cause the most angst. In obtaining a Norwich Order, the analysis requires "balanc[ing] the benefit to the applicant of revealing the desired information against the prejudice to the alleged wrongdoer in releasing the information."3

It is your job to convince the court that prejudice to the alleged wrongdoer should not tip the scales. Fortunately, evidence to assist you with this task is often right at your fingertips: search the third party's website for policies and/or warnings about the possible release of identifying information if certain terms are breached by the user and/or if such disclosure is "required by law". Demonstrating that users of the website ought to have a reasonable expectation that their personal information might be disclosed in the circumstances of your case should provide some comfort to the court that granting the order is appropriate.

The Norwich Order can be a powerful legal tool; if you find yourself in the right circumstances, do not be afraid to use it.

Footnotes

[1] GEA Group AG v. Ventra Group Co., [2009] O.J. No. 3457 at paras. 50 and 91 (C.A.).

[2] Named after the seminal case Norwich Pharmacal Co. v. Customs & Excise Commissioners, [1974] AC 133.

[3] York University v. Bell Canada Enterprises, 2009 CanLII 46447 at para. 30 (S.C.J.).

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