Court File and Parties

Court File No.: CV-22-00684596 Date: 20230228 Superior Court of Justice - Ontario

Re: Michael Jeffrey Meade, Plaintiff And: The Toronto Dominion Bank, Defendants

Before: Justice Papageorgiou

Counsel: Dora Konomi, for the Plaintiff The Defendant did not attend

Heard: February 16, 2023

Endorsement

[1] The applicant, Michael Jeffrey Meade (“Meade”), applies for a Norwich order requiring the respondent, The Toronto-Dominion Bank ("TD"), to provide banking records of the TD account XXX435 (the "Account") at the TD branch number 0262 located at 500 Rexdale Boulevard, Etobicoke Ontario (the "TD Woodbine Branch").

[2] This application arises from a judgment (the "Judgment") that Meade obtained against 2012392 Ontario Limited ("201 Corp") and John Phillip Thomas Middlebrook ("Middlebrook") on February 13, 2020 based on a loan that became overdue in the amount of $200,000.

[3] Middlebrook and 210 Corp continue to owe more than $86,000 under the Judgment.

[4] Meade paid the loan principal to the defendants into the Account and, in effect, the principal has disappeared, just like the defendants. Meade seeks a Norwich order to obtain the necessary Account records from TD to attempt to determine what the defendants did with his money. Did they invest it and, if so, where? Did the just steal it or use it for their own consumption?

[5] TD was duly served and did not appear to oppose the motion.

[6] It is trite that a Norwich order is a form of equitable relief requiring a third-party to an action or potential action to disclose information that is otherwise confidential: Norwich Pharmacal Co. v. Customs and Excise Commissioners ("Norwich"), [1974] A.C. 133 (H.L). In Glaxo Wellcome PLC v. M.N.R., [1998] 4 F.C. 439 at para. 20 (C.A.) the Federal Court of Appeal described such motions as follows:

The equitable bill of discovery is in essence a form of pre-action discovery.... This remedy permits a court, acting through its equitable jurisdiction, to order discovery of a person against whom the applicant for the bill of discovery has no cause of action and who is not a party to contemplated litigation.

[7] In Alberta (Treasury Branches) v. Leahy 2000 ABQB 575, [2000] A.J. No. 993 (Q.B.) aff’d (2002), 51 Alta L.R. (4th) (C.A.) application for leave to appeal dismissed [2002] S.C.C.A. No. 235 at para. 106 ("Leahy"), the Court identified the following considerations which guide the exercise of the court’s discretion:

a. Does the applicant have a bona fide claim? b. Was the third party from whom the information is sought involved in the events giving rise to the claim? c. Is the third party the only practicable source for the information? d. Can the third party be indemnified for the cost of complying with the order and any potential damages that might flow from compliance? e. Do the interests of justice favour granting the relief sought?

[8] These criteria, excluding the requirement for a damages indemnification, were subsequently adopted by Spence J. of the Ontario Superior Court of Justice in Isofoton S.A. v. Toronto Dominion Bank, (2007), 85 O.R. (3d) 780 at para 40.

[9] Application of these criteria all support the granting of the Order sought by Meade.

[10] In particular, the claim is bona fide since Meade has a judgment against Middlebrook and 201 Corp in respect of moneys which Meade advanced to them and which were deposited into the Account in question. He needs to determine what happened to the amount deposited into the account to determine next steps for collection. TD has become involved by virtue of receiving such funds, although it is innocent of any wrongdoing. As set out in the affidavit material, Meade has taken multiple steps to try to collect on the Judgment. The sum of $86,894 remains owing and I am satisfied that TD is the only practicable source for the information as to where the money went. Meade has undertaken to indemnify TD for any costs it may incur because of the requested disclosure.

[11] Finally, the interests of justice favour granting the Order sought. Any potential prejudice in granting of the Norwich order is limited because the form of Norwich order sought restricts the uses of any information obtained from TD. Meade seeks only to use the information to trace assets (i.e., the Amount). In Isofoton, at para 47, Justice Spence, in granting a Norwich order, found that similar restrictions "protected the alleged wrongdoer from any significant prejudice."

[12] The confidentiality interest in the records, which are subject to production by court order in a variety of circumstances, is not sufficient to justify refusing a Norwich order: Leahy at para 162. Here, the potential prejudice is even more limited. Meade simply wants the opportunity to follow the money to determine whether (i) it was properly invested and where (ii) it was transferred to someone else, or (iii) simply (fraudulently) consumed.

[13] As noted by the Court in Leahy, and again in Isofoton, at para 63, it is "typical and justified" for a court to order that the court file in respect of a Norwich application and any resulting order be sealed. A Norwich order would be ineffective if an alleged wrongdoer were aware of the order, as that person would then be able to take steps to frustrate the applicant's rights.

[14] Order to go in the terms set out in the Judgment signed.

Justice Papageorgiou Date: February 28, 2023