Justice Thomas Lederer recently dismissed Subway’s application seeking a Norwich Order against Trent University. In doing so, he provided clarity on a “rare and extraordinary discretionary relief”1 of which there is little jurisprudence on in Canada.
WHAT IS A NORWICH ORDER?
Norwich Orders originated in the United Kingdom. The first was granted by the House of Lords in Norwich Pharmacal Co v Commissioners of Customs & Excise;2 the case from which the name of the Order is derived.
A Norwich Order is for discovery in advance of an action being commenced. It is, in essence, an order for pre-action discovery. The granting of such an order is a rare and extraordinary discretionary relief. The policy proposition is that on occasion there may be situations where a party cannot proceed based only on the information available to it.
SUBWAY DEFAMATION SUIT & NORWICH APPLICATION
In February, a CBC Marketplace report stated that DNA tests suggested some chicken products served by Subway contained only 50% chicken or less. In response, Subway issued a gargantuan $210-million defamation lawsuit against CBC alleging significant sales losses.
Subway also requested information from Trent University; the entity that conducted the DNA testing. Trent refused to produce any information. In response, Subway brought an application seeking a Norwich Order as a means of obtaining this information.
Five factors must be shown in order to receive the rare and extraordinary discretionary relief of a Norwich Order:
- Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
- 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;
- Whether the third-party is the only practicable source of the information available;
- Whether the third-party can be indemnified for costs to which the third-party may be exposed because of the disclosure; and
- Whether the interests of justice favour the obtaining of disclosure.
Information Available via CBC Discovery
Subway’s application was denied because Subway had another method of obtaining the information requested: the CBC defamation suit. Any information regarding Trent’s involvement and communications with the CBC could be obtained at the CBC discovery. Therefore, it was unnecessary to grant the extraordinary relief of a Norwich Order.
Policy grounds for the denial were also given. Since being imported to Canada, the basis for granting Norwich Orders has been expanded:
- To identify wrongdoers, but also
- To evaluate whether a cause of action exists,
- To plead a known cause of action,
- To trace assets, or to
- Preserve evidence or property.
Justice Lederer drew a comparison to MVA actions. MVA pleadings have long been standardised. For the most part, MVA pleadings include a laundry list of allegations of which many are not known for certain; they are alleged and then enquiries as to their viability are made through production and discovery.
Justice Lederer opined that if a Norwich Order was to be granted in this case, then every owner and driver of a motor vehicle involved in an accident that could or might give rise to a lawsuit would be entitled to one also.
In the present case, Subway had enough information to issue a standard defamation pleading against Trent. They did not require the pre-action discovery particulars they sought to issue a sufficient pleading. Therefore, the application was also denied on policy grounds
As stated in Gea, a landmark Court of Appeal decision reversing the granting of a Norwich Order:3
… a Norwich Order is an equitable, discretionary and flexible remedy. It is also an intrusive and extraordinary remedy that must be exercised with caution. It is therefore incumbent on the applicant for a Norwich Order to demonstrate that the discovery sought is required to permit a prospective action to proceed …
Norwich Orders are a useful litigation tool; however, they are also an “intrusive and extraordinary that must be exercised with caution.”4 The decision by Justice Lederer denying Subway’s application for a Norwich Order reinforces this notion. It will be interesting to see how the case law surrounding Norwich Orders unfolds in light of this recent decision.
- Sean Petrou
1 Gea Group AG v Ventra Group Co et al, 2009 ONCA 619 at para 104.
2  AC 133 (HL),  3 WLR 164,  2 All ER 943.
3 Supra note 1 at para 85.