#CyberFLASH: Norwich Orders – Quebec Courts Unmask “Anonymous” Online Offenders

gavel-stock-image-2In 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:

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