Court File and Appearances
Court File No.: CV-24-00095002-00000
Motion Heard: 2025-06-24
Court: Superior Court of Justice - Ontario
Parties:
Ari Lesser, Plaintiff
Meta Platforms Inc. (c.o.b. Instagram), John Doe and Jane Doe, Defendants
Cogeco Connexion Inc., Third Party to the Motion
Counsel:
Lawrence Greenspon and Tina Hill, for the Plaintiff
Miranda Spence and Josh Suttner, for the Defendant Meta Platforms Inc.
Alexia Walter, for the Third Party Cogeco Connexion Inc.
Before: Associate Justice Kamal
Reasons for Decision
The Plaintiff brings a motion seeking an order requiring Cogeco, a third party, to disclose the basic subscriber information associated with the IP address 24.51.239.147.
The Plaintiff previously brought a motion for basic subscriber information for the account of the individual who created a petition on Change.org. I reported that decision at Lesser v. Meta Platforms Inc. et al, 2025 ONSC 2105.
The Plaintiff brings this motion pursuant to Rule 30.10 of the Rules of Civil Procedure, which allows the Court to order production of a document that is in the possession, control or power of a person who is not a party to the action.
The Plaintiff also argues that the Court has recognized its inherent jurisdiction to order a non-party to produce documents/information as an equitable remedy in certain cases. These types of orders have come to be known as Norwich orders.
Meta Inc. takes no position with respect to the relief requested.
Cogeco also takes no position but agrees to the form of the order if the Plaintiff is successful in the motion.
In this motion, it is important to discuss the distinction between Rule 30.10 of the Rules of Civil Procedure and Norwich orders. As an Associate Judge, I do not have jurisdiction to grant equitable relief and therefore, am unable to grant a Norwich order. However, I do have jurisdiction to grant an order pursuant to Rule 30.10.
The key difference between a Norwich order and a Rule 30.10 order lies in their purpose, timing, and the context in which they are sought.
A Norwich order is a pre-action discovery tool. It is used to compel a third party to provide information to help identify an unknown wrongdoer prior to the commencement of litigation. A Norwich order is an equitable remedy. It is generally commenced as an Application, seeking relief on its own.
A Rule 30.10 order is a remedy available after litigation has been commenced that allows a party to obtain documents (including information) from non-parties when those documents are relevant and necessary.
In my view, there is an overlap between Norwich orders and Rule 30.10 orders in cases such as this one. However, the procedure matters. In the present case, the Plaintiff has already commenced an action that has been served on some of the Defendants. This relief is not requested by a pre-litigation application but rather, as a motion pursuant to the Rules within the existing action.
The request before me is brought as a motion and is not prohibited by Rule 37.02(2).
If the Norwich order was sought in a free-standing proceeding in which the only relief is the release of information, I would not have jurisdiction to grant the equitable remedy.
Therefore, I am prepared to consider the relief requested as a Rule 30.10 motion, which I have jurisdiction to consider.
Irwin Toy Ltd. v. Doe, [2000] O.J. No. 3318 involved a motion for disclosure from internet service providers in the context of a defamation action. Wilkins J. held that Rule 30.10 could be used to compel production from an internet service provider of the identity of a subscriber for whom the plaintiffs had obtained the IP address. While Wilkins J. did not expressly adopt the principles in Norwich Pharmacal, he did, in substance, consider the factors enumerated in that decision. In particular, Wilkins J. expressly considered whether the applicant had demonstrated on the affidavit evidence a prima facie case of defamation against the John Doe defendant in that action. This was the same approach I adopted in Lesser v. Meta Platforms Inc. et al, 2025 ONSC 2105 by considering the principles of a Norwich order while making the decision pursuant to Rule 30.10.
Rule 30.10(1) of the Rules of Civil Procedure 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.
The court must be satisfied that the document is relevant to a material issue in the action and it would be unfair to require the moving party to proceed to trial without having discovery of the document.
“Document” is defined in Rule 1.03 as including “data and information in electronic form”. The information requested is a document as contemplated in the Rules.
On the facts of the case at bar, the Plaintiff, in my view, meets all of the tests necessary to require Cogeco, a third party, to disclose the basic subscriber information associated with the IP address 24.51.239.147.
The Plaintiff has been unable to obtain information as to the identity of "John and Jane Doe" which is clearly relevant to all of the material issues in the action. In addition, it would be unfair to require the Plaintiff to attempt to proceed without having the opportunity of identifying the true defendant.
In my view, there would be no unfairness to Cogeco to disclose the basic subscriber information associated with the IP address. Cogeco was served with the motion materials and is not opposing the relief requested.
In the circumstances of the case at bar, the moving party has demonstrated on the affidavit material filed before me that it has a prima facie case as against John and Jane Doe in respect to the allegations of claimmade in the Statement of Claim. In my view, that is the appropriate test for the court to apply in determining whether or not to order a non-party internet service provider to disclose the identity of an internet protocol address.
Accordingly, the motion is granted.
Associate Justice Kamal
Date: June 24, 2025