Reasons for Decision
Court File No.: CV-24-00095002-0000
Date: 2025-03-27
Ontario Superior Court of Justice
Between:
Ari Lesser, Plaintiff
– and –
Meta Platforms Inc. (c.o.b. Instagram), John Doe and Jane Doe, Defendants
Appearances:
Lawrence Greenspon and Tina Hill, for the Plaintiff
Miranda Spence and Josh Suttner, for the Defendant Meta Platforms Inc.
Heard: March 27, 2025
Associate Justice Kamal
Background
The Plaintiff brings a motion for a Norwich order for the production of specific documents from a third party, Change.org, to the plaintiff within thirty days of the date of the order. Specifically, the Plaintiff seeks the basic subscriber information for the account of the individual who created the petition “Petition to Remove Lesser: Putting an End to Racism & Promoting Unity at Ridgemont H.S”, including the following to the extent that such information or data is in the possession of Change.org:
- The vanity metric;
- The account closure date, if applicable;
- The name, email address(es) and/or telephone number(s) for the account at the time of production;
- The date, time, and IP address of registration; and
- The date, time, and IP addresses for recent logins.
Furthermore, the Plaintiff seeks that Change.org may inform the account holder(s) and/or creator(s) of the petition of this request, in accordance with their policies.
The Plaintiff agrees that they shall pay the third-party Change.org its reasonable costs incurred, if any, to comply with this order.
At the time the motion materials were filed, Change.org indicated that they would oppose the Norwich order motion. A letter was filed with the Court on October 15, 2024 from the Plaintiff’s counsel, which attached a thread of emails. The emails indicated that Mr. Shahzad Siddiqui, counsel for Change.org, advised the Plaintiffs on October 10, 2024, that Change.org is no longer opposing the Norwich order motion. Mr. Siddiqui also provided his consent to inform the Court of this change in position.
This action relates to a petition, published by an unknown individual on the Change.org website, which alleged that the Plaintiff is racist and called for the Ottawa-Carleton District School Board to remove him as a teacher at Ridgemont High School.
The petition has since been removed by Change.org.
However, various photos relating to the petition, a direct link to the petition, and further defamatory statements, were posted and are still public on Instagram, using the Instagram handle @ridgemontsb.
Law and Analysis
General Principles
Rule 30.10(1) of the Rules of Civil Procedure, RRO 1990, Reg 194 allows the Court to order production for inspection of a document that is in the possession, control or power of a person who is not a party and is not privileged.
“Document” is defined in Rule 1.03 as including “data and information in electronic form”.
A "Norwich order" (based on the principles articulated in Norwich Pharmacal Co. v. Comrs. of Customs and Excise, [1974] A.C. 133, [1973] 2 All E.R. 943 (H.L.)) is an equitable remedy.
Rule 96 of the Courts of Justice Act, RSO 1990, c C.43 sets out that rules of equity and common law shall be administered concurrently.
A Norwich order compels a third party to disclose information or documents relevant to a potential lawsuit, even before a lawsuit has been filed.
The primary purpose of such an order is to facilitate pre-action discovery, allowing a party contemplating litigation to gather information and documents necessary to determine whether a cause of action exists or to identify potential wrongdoers.
Unlike traditional discovery, which involves parties to a lawsuit, a Norwich order targets third parties who may have information or documents relevant to the potential claim, but who are not themselves the proposed defendant.
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, although the firm commitment to commence proceedings is not itself a condition precedent to this form of equitable relief: GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619, para 85.
In Alberta Treasury Branches v. Leahy, 2000 ABQB 575, Justice Mason set out the following formulation of the test for a Norwich order:
- (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.
- In Glaxo Wellcome plc v. M.N.R., Stone J.A. provided a detailed review of the decision in Norwich Pharmacal, and then held that there are two threshold requirements for obtaining the discretionary remedy of an equitable bill of discovery:
- (i) the applicant must have a bona fide claim against the alleged wrongdoers; and
- (ii) the applicant must share some sort of relationship with the respondents.
- Stone J.A. then identified two additional requirements for granting a bill of discovery:
- (iii) the person from whom discovery is sought must be the only practicable source of information available to the applicant; and
- (iv) the public interests both in favour and against disclosure must be taken into account.
The factors set out in Leahy and Glaxo Wellcome plc v. M.N.R. have been adopted by the Ontario Court of Appeal and treated as the test for an applicant to obtain a Norwich order: GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619, paras 53 and 62; 1654776 Ontario Limited v. Stewart, 2013 ONCA 184, para 50.
An applicant for a Norwich order must also demonstrate that the requested pre-action discovery is necessary. This requirement can be satisfied in various ways, such as needing to obtain the identity of the wrongdoer, or to evaluate whether a cause of action exists: GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619, para 91.
Application to the Present Case
Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim
The applicant's claim must not be frivolous or vexatious: Isofoton S.A. v. Toronto Dominion Bank, para 42.
The limited uses to which information obtained pursuant to a Norwich order may be put further protects the alleged wrongdoer from any significant prejudice. In contrast, as common law courts have long recognized, the applicant who believes that a wrong has occurred has an equitable right to obtain the information: Isofoton S.A. v. Toronto Dominion Bank, para 47.
Currently, the Plaintiff does not know the identity of the creator of the petition or the owner of the Instagram account @ridgemontsb. The Statement of Claim currently has named “John Doe/Jane Doe” as Defendants. Once the Plaintiff is aware of the identity of the wrongdoer, he intends to amend the statement of claim to remove John Doe/Jane Doe and name the individual responsible for the alleged defamatory material.
I am satisfied the first step in the test is met.
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
The authorities often speak of a "mere witness" as not being susceptible to a Norwich order. This language clearly does not mean that the third party must therefore have participated in the wrongdoing. An example of an insufficient connection is that of a witness to a car accident: such a third party could not ordinarily be subject to a Norwich order: Isofoton S.A. v. Toronto Dominion Bank, para 49.
In Carleton Condominium Corporation No. 282 v. Yahoo! Inc., 2017 ONSC 4385, the court considered communication service companies who provide web-based email services (Yahoo! and Yahoo! Canada) being involved in the alleged wrongful acts. The Court found that without those email services, the wrongdoer could not have written and sent the anonymous emails. While the Plaintiff did not allege that Yahoo! and Yahoo! Canada were implicated in or liable for the wrongful acts of the originator of the emails, they were involved in the wrongful acts and are more than mere witnesses.
In York University v. Bell Canada Enterprises, the Court considered circumstances where the providers of Internet services from whose "gmail" address the anonymous e-mail originated. The Court found that Bell and Rogers (the providers of Internet services) provided the conduit for the communication of the e-mail. Without the Internet services provided by Bell and Rogers, the e-mails could not have been sent over the Internet. While the applicant does not allege that Bell and Rogers are implicated in or liable for the wrongful acts of the originators of the e-mail and website posting, Bell and Rogers were more than mere witnesses.
In this case, the principles from these two cases apply. Changeorg.ca was the website used to create the petition that is the subject to this action. Without the services of Changeorg.ca, the petition could not have been created.
On January 15, 2024, the Plaintiff served a Notice of Libel on Change.org and the defendant, Meta Platforms Inc. regarding the defamatory content. In response, Change.org removed the petition from their website, but did not identify the creator of the petition.
Changeorg.ca is more than a mere witness and was involved in the wrongdoing, even if they are not liable.
Whether the third party is the only practicable source of the information available
The third party must be the only practicable source of the information. This does not mean that the third party is the only source of the information: Isofoton S.A. v. Toronto Dominion Bank, para 52.
In this case, Changeorg.ca was the website used to create the petition that is the subject to this action. The identity of the creator of the petition is unknown – it is part of the reason that this motion is brought.
The information sought is described as the basic subscriber information for the account of the individual who created the petition “Petition to Remove Lesser: Putting an End to Racism & Promoting Unity at Ridgemont H.S”. This includes the vanity metric, the account closure date, if applicable, the name, email address(es) and/or telephone number(s) for the account at the time of production, the date, time, and IP address of registration and the date, time, and IP addresses for recent logins – to the extent that Changeorg.ca is in possession of this information.
The evidence before me satisfies me that Changeorg.ca is likely the only source of this information. Furthermore, Changeorg.ca is not opposing this motion.
Accordingly, I am satisfied that Changeorg.ca is the only practicable source of the information.
Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure
Some of the authorities speak of a requirement that the applicant provide an indemnity for costs, while others speak of an indemnity for damages. The majority of the authorities provided require the former, and Mason J. in at para. 203 rejected the proposition that only an undertaking as to damages would suffice: Isofoton S.A. v. Toronto Dominion Bank, para 54.
A more recent case states that an indemnity for damages is not required: Sutton et al. v. Dayaram et al., 2022 ONSC 2413, para 85.
Here the evidence includes an undertaking to indemnify any party subject to the order for any costs of compliance.
The order specifically requests that the plaintiff shall pay the third-party Change.org its reasonable costs incurred, if any, to comply with this order.
Thus, the fourth consideration is satisfied.
Whether the interests of justice favour the obtaining of the disclosure
The court is required to balance the benefit to the applicant of disclosing the requested information against the prejudice to the alleged wrongdoer in releasing the information. In so doing, the court may consider the nature of the information, the degree of confidentiality accorded to the information by the third party, and the degree to which the requested order curtails the use to which the information can be put: York University v. Bell Canada Enterprises, para 30; Isofoton S.A. v. Toronto Dominion Bank, para 57.
I find that the balance in this case strongly favours granting the relief sought for two reasons.
Change.org’s privacy policy, available on their website, indicates that they may have to disclose information about their users to government authorities, including courts. The unknown individual could not have had a reasonable expectation of privacy when using Change.org for the purpose of publishing a defamatory petition.
Second, the disclosure is necessary. The Plaintiff has established a bona fide claim of defamation against the originator of the emails.
The potential prejudice arising from granting the relief sought is that prejudice which flows to the alleged wrongdoers from the disclosure of confidential information. There are two reasons why this is not sufficient to override the applicant's equitable right to the information that will allow it to pursue its legal remedies.
First, as mentioned above, there would not have been an expectation of privacy or confidentiality due to Change.org’s privacy policy, available on their website.
Second, the disclosure and use of the information sought is also not absolute, as these issues are limited by the terms of the order. The information can only be used for the purposes for which Norwich orders are typically granted: to trace assets, determine the identity of wrongdoers and discover whether the facts justify the bringing of legal proceedings.
While it may be appropriate in a given case to require that the originator of the alleged defamatory material be given notice of the proceedings by the third party, I do not consider it necessary to do so in this case: York University v. Bell Canada Enterprises, paras 24 and 38.
Conclusion
- In summary, I am satisfied that:
- The Plaintiff has demonstrated a bona fide claim of defamation.
- The Plaintiff has established a relationship with Change.org such that it establishes that Change.org is somehow involved in the acts complained of, for the purposes of this motion.
- Change.org is the only practicable source of the information.
- The Plaintiff has provided an undertaking to indemnify Change.org for their reasonable costs of complying with the order.
- The interests of justice strongly favour the Plaintiff obtaining the disclosure.
- For these reasons, I grant the order requested.
Date: March 27, 2025
Associate Justice Kamal