Norwich Orders – Quebec Courts Unmask 'Anonymous' Online Offenders

In Fers et métaux américains v. Pollard,1 the Quebec Court of Appeal recognized that Norwich orders are indeed within the jurisdiction of Quebec courts. Civil law practitioners have taken notice and what was once a rarely sought remedy has become a powerful tool in information age litigation.

Victims of anonymous online fraud, hacking or defamation often lack critical information needed to initiate a lawsuit, not the least of which being the identity of the perpetrator. Where appropriate, the Norwich order - an extraordinary remedy compelling the pre-action discovery of a third party - allows claimants to obtain such information before seeking further redress. These orders are increasingly being sought to force third parties, such as internet service providers and website administrators, to disclose the identities of fraudsters, hackers and cyber-bullies operating under the guise of online anonymity.

Norwich orders originate from the 1974 U.K. decision in Norwich Pharmacal Co. v. Commissioners of Customs and Excise,2 where the House of Lords ordered customs officials to disclose the identity of individuals who had been anonymously importing patent-infringing substances. In Canada, Norwich orders were first recognized in 1998 by the Federal Court of Appeal in a similar patent infringement context.3

The applicable test for the issuance of a Norwich order was first articulated by appellate courts in Alberta4 and Ontario.5 Quebec trial courts then followed suit in a handful of reported decisions6 before the Quebec Court of Appeal ultimately adopted the following iteration of the test in 2013 in Pollard:

(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 the disclosure.

Further, a Norwich order's effectiveness and enforceability often depend upon proceedings being confidential so as to...