In Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., the Ontario Court of Appeal addressed an increasingly relevant procedural issue: whether litigants can obtain a Norwich order—a powerful pre-trial disclosure remedy—during the appeal stage of a proceeding.
The decision reinforces the principle that appellate courts are not venues for expanding the evidentiary record or revisiting discovery processes that should have been addressed at first instance.
The underlying dispute arose out of a product repair and warranty program administered by Canadian Tire Corporation (“CTC”). Under this program, third-party entities were retained to perform repairs and submit invoices for reimbursement.
The appellants, operating both individually and through several corporations, participated in this repair network. Over time, concerns emerged regarding the legitimacy of their billing practices. Following an investigation, CTC determined that an overwhelming majority of the repair claims submitted between 2015 and 2018—approximately 99.51%—were not authentic.
CTC commenced litigation alleging a range of civil wrongs, including:
The damages claimed exceeded $3 million, reflecting payments made in reliance on allegedly fraudulent invoices.
The matter proceeded by way of summary judgment motions brought by both parties. CTC sought recovery of the funds it had paid, as well as punitive damages. The appellants, in turn, advanced counterclaims and crossclaims.
The motion judge granted summary judgment in favour of CTC, concluding that the appellants had engaged in a fraudulent scheme involving false repair invoices. The court awarded:
The appellants’ claims were dismissed in their entirety.
On appeal, the appellants challenged multiple aspects of the decision, including findings on causation, reliance, and limitations. However, the procedural issue that became central to this motion was their attempt to obtain further evidence relating to insurance.
Following the summary judgment ruling, the appellants sought to obtain disclosure relating to CTC’s insurance coverage. They argued that CTC may have been indemnified by its insurers and that such indemnification could impact the damages awarded.
According to the appellants:
When attempts to pursue this issue before the motion judge failed, the appellants brought a motion before the Court of Appeal seeking a Norwich-type order against both CTC and non-party insurers.
A Norwich order is an equitable remedy that compels a third party to disclose information necessary to identify or pursue a legal wrong. Originating from English jurisprudence, it has become an important tool in modern litigation, particularly in cases involving fraud, intellectual property, and anonymous wrongdoing.
To obtain a Norwich order, an applicant must typically establish:
These criteria reflect the extraordinary nature of the remedy and the need to balance disclosure against privacy and procedural fairness.
The Ontario Court of Appeal dismissed the motion, emphasizing that Norwich orders are fundamentally pre-trial discovery tools.
The Court relied on established jurisprudence confirming that Norwich relief is intended to assist litigants in identifying wrongdoers or obtaining evidence before trial, not after a final determination has been made.
In clear terms, the Court stated that its role on appeal is not to facilitate ongoing discovery or supplement the evidentiary record. Rather, the appellate function is limited to reviewing whether the motion judge:
The appellants’ request, in effect, sought to transform the appeal into a continuation of the summary judgment process, an approach the Court firmly rejected.
A key takeaway from the decision is the importance of timing in civil procedure.
The Court noted that if the appellants believed insurance-related disclosure was relevant, they were required to pursue it during the trial-level proceedings, not after judgment had been rendered. By attempting to introduce new evidence on appeal, the appellants were effectively bypassing established procedural rules.
This reinforces a broader principle: parties must advance their evidentiary positions fully and diligently at first instance. Failure to do so will rarely be remedied on appeal.
Although not strictly necessary to its decision, the Court also cast doubt on the relevance of the requested insurance information.
CTC had advised that:
Even if insurance proceeds had been paid, the respondent argued that such payments would not reduce the damages recoverable from the appellants. This reflects the well-established principle that insurance indemnification is generally not deductible from damages in cases involving wrongdoing.
While the Court did not definitively resolve this issue, its comments suggest that the appellants’ motion may have been flawed not only procedurally but also substantively.
The Court also highlighted an important equitable principle: a party seeking equitable relief must come to the court with “clean hands.”
Given that the appellants had been found to have engaged in a fraudulent scheme—a finding difficult to overturn on appeal—the Court expressed skepticism about their entitlement to equitable remedies, such as a Norwich order.
This aspect of the decision underscores that equitable relief is discretionary and may be denied where the applicant’s conduct undermines their claim to fairness.
The decision reinforces a critical distinction between trial and appellate courts. Appellate courts are not fact-finding bodies. They do not:
Instead, their role is confined to reviewing the correctness of the decision below based on the existing record.
By seeking new disclosure and expanding the evidentiary foundation of their appeal, the appellants were effectively seeking to relitigate the case. The Court of Appeal made clear that this is not permissible.
The Ontario Court of Appeal’s decision in Canadian Tire Corporation, Limited v. Eaton Equipment Ltd. provides a clear and authoritative statement on the limits of Norwich orders in the appellate context.
By reaffirming that such orders are pre-trial remedies and rejecting attempts to expand the evidentiary record on appeal, the Court has reinforced the procedural integrity of the litigation process.
For litigants and counsel alike, the message is straightforward: the time to build your case is at first instance. Appeals are for reviewing decisions—not reconstructing them.
Milosevic & Associates advises clients on all aspects of commercial disputes, including fraud claims, summary judgment motions, and appellate advocacy. The firm’s fraud litigation lawyers work proactively to ensure that your case is fully developed at every stage of the proceeding, protecting your interests and positioning you for success. To discuss your civil fraud matter, please contact the firm online or call (416) 916-1387.
© 2026 Milosevic & Associates. All rights reserved. Privacy Policy / Disclaimer. Website designed and managed by Umbrella Legal Marketing