Norwich Pharmacal Orders – An Equittable Bill of Discovery

This post will focus on Norwich Pharmacal Orders

Rule 7-1(18) provides that if a document is in the possession or control of a person who is not a party of record, the court, on an application brought on notice to the person and the parties of record, may make an order for either the production, inspection and copying of the document, or preparation of a certified copy that may be used instead of the original.

However, the Court, under their inherent jurisdiction, may step in and make additional Orders of relief where the normal discovery process is not effective.  This reference is to “an equitable bill of discovery” which is also known as a “Norwich Pharmacal Order”.

Norwich orders were first provided in an action Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133 (HL).

What is a Norwich Order?

A Norwich Pharmacal order is a court order for the disclosure of documents or information that is available in the United Kingdom. It is granted against a third party which has been innocently mixed up in wrongdoing, forcing the disclosure of documents or information.  (as per Wikipedia)

Norwich Orders were further interpreted in Lockwood Financial Ltd. v. China Blue Chemical Ltd., 2015 BCSC 839 (CanLII):

A “Norwich Pharmacal” order is named after the House of Lords case which revived this equitable remedy, Norwich Pharmacal Co. & Others v. Custom and Excise Commissioners, [1974] A.C. 133. Lord Reid expressed the principle as follows at p. 175:

[The authorities] seem to me to point to a very reasonable principle that if through no fault of his 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. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.

[39]        The English Chancery court explained the extension of the principle to include evidence beyond the identity of the wrongdoer as follows in Societe Romanaise de la Chaussure SA v. British Shoe Corporation Limited, [1991] FSR 1, at 5, per Millet J.:

… [i]t is not sufficient to disclose the identity of the wrongdoer; the obligation extends to giving full information. That must include all information necessary to enable the plaintiff to decide whether it is worth suing the wrongdoer or not.

Relief for a Norwich Order was summarized in Equustek Solutions Inc. v. Jack, 2014 BCSC 454:

Norwich orders have been granted in numerous situations, including:

(i)   where the information sought is necessary to identify wrongdoers;

(ii)   to find and preserve evidence that may substantiate or support an action against either known or unknown wrongdoers; or even

(iii)  to trace and preserve assets.

Factors to be considered on an application for a Norwich order include:

(i)   Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;

(ii)   Whether the applicant has established a relationship with 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;

(iii)  Whether the third party is the only practicable source of the information available;

(iv) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, some [authorities] refer to the associated expenses of complying with the orders, while others speak of damages; and

(v)  Whether the interests of justice favour the obtaining of that disclosure.

See GEA at para. 51 and Procon Mining and Tunnelling Ltd. v. McNeil, 2007 BCSC 454 (CanLII) at para. 27 and Kenney v. The Loewen Group Inc. (18 February 1999), Vancouver C975021 (B.C.S.C.), by Saunders J.

For example, in cases where defamatory statements have been made by parties through social media, and those parties are not easily identified, a Norwich Pharmacal Order can provide relief to a defamed individual who may have a cause of action against such individuals.  It allows the Plaintiff the relief to seek information from a third party that may have information that will assist the Plaintiff in identifies the Defendants in the claim.

In Gold Bullion Development Corp. v. Stockhouse Publishing Ltd., 2013 BCSC 784, the Court states:

“Whether there is a cause of action, I would note the words of Cole J. in the decision of Pierce v. Canjex Publishing Ltd. [2011] B.C.J. No. 2106 (S.C.) in which he states:

[15]      In Colour Your World Corp. v. Canada Broadcasting Corp. (1998), 1998 CanLII 1983 (ON CA), 38 O.R. (3d) 97, 156 D.L.R. (4th) 27 at 36 (Ont. C.A.) leave to appeal S.C.C. dismissed, [1998] S.C.C.A. No. 170, Abella J., as she then was, stated at para. 14:

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem.  The statement is judged by the standard of an ordinary, right-thinking member of society …

In Gold Bullion, the Plaintiff sought a Norwich Order for production of the IP address of three individuals who posted certain comments on message boards of a third party in connection with the Petitioner’s company. The third party in this hearing did not oppose this hearing, but sought its costs for producing the information sought by the Petition.

In concluding its decision in this application, the Court reviewed the factors, and I will enumerate them:

(a)      Does a bona fide claim exist?

This Court has already reviewed the bona fide aspects set out in the requirement of (a), and this Court is satisfied that that exists against the unknown wrongdoers here, Sharpie009, Wrapup and Musky13.

(b)      Is the information required?

In the circumstances, it being a username without a connection to a real name, there is no question that the information would be required from the respondent in order to ascertain the identities of Sharpie009, Wrapup and Musky13.  Accordingly, the requirements of (b) are met.

(c)      Practical source of the information

The defendant is the only practical source of the information.  The requirement is that the defendant, here respondent, be the only practicable source of the information similarly exists.

(d)      No immunity from disclosure

I find that there is no immunity from disclosure.  It is indeed set out in the rules of posting of the respondent as to what can and cannot be posted and their privacy policy.

(e)      Involvement in the wrongdoing without connoting impropriety

As for the relationship, there is no question that it is message boards used and that the respondent enabled the posting, and it is important to stress, however, that it does not connote impropriety.

(f)        Irreparable harm

There is no irreparable harm that has been shown and indeed it is clear that the respondent was content that this matter proceed on the basis of the materials that are set before the Court in the affidavit and in the email that was provided to the Court.

(g)      Interests of justice favour granting relief

I am satisfied that the interests of justice favour granting the relief, given the nature of the posts and the materials before the Court.

I am mindful, however, that the relief sought must be on terms that all the costs of procuring that information be borne by Gold Bullion Development Corp. and, accordingly, this Court will grant the order in the terms as follows:

  1.  That the respondent, Stockhouse Publishing, disclose to the petitioner, Gold Bullion Development Corp., the Internet protocol address, possible addresses, names, addresses, and any other identifying information of the authors associated with the online posting, and those are set out in the order, although I have read them out loud earlier in the reasons; this is the identifying computer information necessary to locate them;
  2.  The respondent disclose to the petitioner Internet protocol addresses, names, addresses, and any other identifying information of the authors associated with the website registered user, Sharpie009, Wrapup and Musky13; and
  3. That the petitioners pay to the respondent all reasonable costs incurred by the respondent for the retrieval, production, inspection, and delivery of the identifying information forthwith in the amount as agreed between the petitioner and the respondent.

Again, all reasonable costs incurred will be payable to the respondent to procure the information as they have set out in the petition.  The respondents have indicated to the petitioner those amounts that they are likely to be.

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