We have previously written about Norwich orders and the requirements for obtaining one from a court. Earlier this year, the Ontario Superior Court of Justice released a decision analyzing this remedy in the context of a complex online defamation dispute.
Dispute Arose From Petition Published on the Change.org Website
The case of Lesser v. Meta Platforms Inc. et al involved a lawsuit related to a petition published by an unknown person on the website Change.org. The petition was entitled, “Petition to Remove Lesser: Putting an End to Racism & Promoting Unity at Ridgemont H.S.” The petition alleged that the plaintiff was racist and called for him to be removed as a teacher at Ridgemont High School. As of the date of the decision of the Superior Court of Justice, the petition had been removed by Change.org, but photos relating to it, a direct link to it and other allegedly defamatory statements were still available on Instagram. The identity of the petition’s creator was unknown.
The plaintiff brought a motion for a Norwich order requiring the production of certain documents and information from Change.org. Specifically, the plaintiff sought “basic subscriber information” related to the account of the individual who had created the petition, including information related to IP addresses. Once the plaintiff was able to determine the identity of the petition’s creator, they intended to amend their Statement of Claim.
What Is a Norwich Order?
A Norwich order is an equitable remedy that takes its name from the U.K. case Norwich Pharmacal Co. v. Comrs. of Customs and Excise. It requires a third party to disclose information or documents relevant to a lawsuit, “even before a lawsuit has been filed” (see Lesser). It works in tandem with Rule 30.10 of the Rules of Civil Procedure, which allows a court to order production of a document “that is in the possession, control or power of a person who is not a party” where the document is not privileged.
As the Court explained in Lesser, the main purpose of a Norwich order is “to facilitate pre-action discovery, allowing a party contemplating litigation to gather information and documents necessary to determine whether a cause of action exists or to identify potential wrongdoers.” The Court went on to note that such a remedy is “extraordinary” and “must be exercised with caution” since it is intrusive by nature.
What Is the Test To Meet to Obtain a Norwich Order?
The Court in Lesser cited earlier decisions of the Court of Appeal in 1654776 Ontario Limited v. Stewart and GEA Group AG v. Flex-N-Gate Corporation, which expressly adopted the legal test to be met to obtain a Norwich order. A court must consider:
- Whether there is evidence sufficient “to raise a valid, bona fide or reasonable claim”;
- Whether there is a relationship between the applicant and the third party from whom the information is sought, “such that it establishes that the third party is somehow involved in the acts complained of”;
- Whether that third party “is the only practicable source” available from which to obtain the information;
- Whether the third party can be indemnified for costs it may be exposed to “because of the disclosure”; and
- Whether obtaining the disclosure is favoured by the “interests of justice.”
The Court in Lesser also pointed out that the applicant for a Norwich order must establish that pre-action discovery is necessary – for example, by showing it is needed “to obtain the identity of the wrongdoer.”
Court Cites Previous Case Law In Which Norwich Orders Were Issued to Third-Party Service Providers
In applying the legal test for obtaining a Norwich order, the Court in Lesser found that the plaintiff’s claim was neither frivolous nor vexatious and met the first requirement.
With respect to the second requirement, the Court indicated that a “mere witness” is not typically subject to a Norwich order. Instead, there must be some connection between the applicant and the third party, although the third party need not have participated in the alleged wrongdoing. The Court in Lesser referenced two previous decisions (Carleton Condominium Corporation No. 282 v. Yahoo! Inc. and York University v. Bell Canada Enterprises) as precedent for Norwich orders being used to compel email and internet service providers to disclose information where they provided the means by which offending emails had been sent. In Lesser, since the offending petition could not have been created without the services of changeorg.ca, it was “involved in the wrongdoing,” even if it was not liable for it. Thus, the second part of the test was met.
Court Finds the Interests of Justice Favour Disclosure
The third requirement of the test for a Norwich order is that the third party must be the only “practicable” source of the information that is sought, not the only source. The Court in Lesser noted that changeorg.ca was likely the only source of the information and did not oppose the motion. This requirement was thus met.
Fourthly, the applicant must indemnify the third party for the costs of its compliance with the Norwich order. This requirement was likewise met.
Finally, the Court in Lesser was required to balance the benefit to the plaintiff of disclosing the information sought “against the prejudice to the alleged wrongdoer in releasing the information.” In doing this, the Court noted it was permitted to take into account “the nature of the information, the degree of confidentiality accorded to the information by the third party, and the degree to which the requested order curtails the use to which the information can be put.”
The Court concluded that the balance in this case strongly favoured issuing the Norwich order. This was because the privacy policy of change.org expressly indicated it “may have to disclose information about their users to government authorities, including courts” (thus meaning that the unknown person in question could not have had a “reasonable expectation of privacy when using change.org”). In addition, the disclosure was necessary since the plaintiff had established “a bona fide claim of defamation against the originator of the emails.”
The Court thus granted the Norwich order.
Contact the Lawyers at Milosevic & Associates for Strategic Representation in Defamation Matters
Online defamation can cause serious and lasting harm, especially when the identity of the person responsible is unknown. If you have been defamed online and need to uncover the source, the experienced litigation team at Milosevic & Associates can help you pursue a Norwich order and protect your reputation. Contact us today online or call (416) 916-1387 to discuss your legal options.