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Appellate Litigation

What is a Norwich Order?

A Norwich order compels a third-party, usually innocent, to preserve and produce evidence in its possession to the moving party. It is a rare and extraordinary remedy generally only given in specific circumstances. It is a creature of equity and is a discretionary remedy. The goal is to obtain information critical to the prosecution or defence of an action that would otherwise be inaccessible to the moving party. An application for a Norwich order is usually brought before an action is commenced.

The Originating Case

The authority for a Norwich order comes originally from a 1974 English House of Lords’ decision called Norwich Pharmacal Co. v. Commissioners of Customs & Excise. In the ruling, a duty to inform and assist was created:

If through no fault of his/her own a person gets mixed up in the tortious acts of others so as to facilitate their-wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.

The Current Test in Ontario

The Ontario Court of Appeal (ONCA) adopted the equitable remedy in their decision of GEA Group AG v. Flex-N-Gate Corporation (2009). There the four-part test to be used in Ontario was established as follows:

  1. Has the moving party shown a valid, bona fide or reasonable claim?
  2. Has the moving party shown that the third-party from whom information is sought is somehow involved in the acts complained of beyond a mere witness?
  3. Is the third-party the only practicable source of the information?
  4. Do the interests of justice favour the obtaining of disclosure from the third-party?

The decision also further solidified the concept that, in order to be successful in an application for a Norwich order, the moving party must establish that the discovery sought is required for the prospective action to proceed. Necessity is a key factor in a successful motion for a Norwich order. Otherwise, as in the case at hand, such a request may be deemed a mere fishing expedition.

When is a Norwich Order Commonly Used?

In Ontario, the most common uses of a Norwich order are as follows:

  1. To obtain IP addresses from internet service providers;
  2. To preserve and obtain banking records;
  3. To trace and preserve movements of cryptocurrency;
  4. To determine whether a cause of action exists
  5. For exculpatory evidence

The Norwich order option is a powerful equitable remedy and its use should be considered whenever there is a need for information from third parties to advance or defend an action.

At Milosevic & Associates, our team of Toronto corporate commercial lawyers regularly represent clients in complex commercial litigation matters ranging from straightforward contract and partnership disputes to complex multi-party commercial claims including dealing with claims of loss from real estate transactions. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. Our impressive track record speaks for itself.  Call us at 416-916-1387 or contact us online to schedule a consultation.