March 13, 2025
A Norwich order is a form of pre-action discovery or preservation order that can be obtained in Ontario by application in the Superior Court. It differs from other pre-action orders in that aimed at persons other than the proposed defendant- though the respondent must have some connection to the wrong. They are called Norwich orders because of the name of the British case that originated them.
Once extremely rare, the growth of internet defamation claims has led to an increase in requests for Norwich orders, but they are not limited to defamation claims. Other examples include fraud, conspiracy, breach of copyright, or even, in exceptional circumstances, unjust enrichment. There is doubt whether or not they ought to be granted in situations involving potential will contests, but this has not yet been firmly decided.
The overall test to obtain a Norwich order in Ontario is whether the order is “necessary” . This requires that the request must have a “legitimate objective” such as to:
- Identify a wrongdoer
- Determine whether a cause of action exists at all
- Assist in knowing what cause of action to plead
- Assist in tracing assets
- Help preserve evidence or property
The test as in Ontario to obtain an order is further set out in a 2009 case, GEA Group AG v. Ventra Group Co. et al. which requires that the applicant show:
- A valid, bona fide or reasonable case.
- That the respondent was somehow involved in the wrongdoing.
- Is the respondent the only practical source of the information being sought?
- Will the order require that the applicant indemnify the respondent for costs or expenses?
- That the interests of justice on balance require that the order be made.
As the last point may suggest, courts take a holistic approach to Norwich orders, and strength in one aspect of the request may balance against weakness in another. Norwich orders are not routinely granted. They will not be granted if the court suspects that the applicant is on a “fishing expedition” (thus the doubt about using them prior to a will challenge – a Plaintiff or Applicant in a will challenge must show an arguable case before proceeding).
The judge will subject the request to careful scrutiny. Norwich orders will not be granted simply to assist drafting a pleading if the necessary information to plead can be obtained elsewhere.
They will also not be granted as a method of obtaining early discovery of information normally obtained in the discovery process required once an action is commenced.
WHAT WEILERS LLP CAN DO TO HELP YOU
We have acted for applicants in seeking Norwich orders. We know the law and have the advocacy skills needed to persuade a judge.
If you think you need to preserve evidence, or if you are confronted by a Norwich order or application for a Norwich order, give us a call. We may be the right lawyers for you.