In Rogers Communication Inc. v. Voltage Pictures LLC [2018] 2 SCR 643, Brown J., for the court, cites Alberta (Treasury Branches) v. Leahy [2000] ABQB 575 as the leading case on Norwich Orders (para 18).
Whereas, new instruments of production are always at risk of being narrowed into irrelevance by too-strenuous an emphasis upon allegedly necessary elements, Brown J.’s reference to Alberta Treasury Branches is refreshing.
Rogers, being a case where the injured movie producer was trying to force Rogers to disclose the ISP identity of all those movie pirates who upload Holywood movies for the masses, is just the type of case which threatens to make a Norwich order into an irrelevance for everyday lawyers doing everyday law.
Not so Alberta Treasury Branches. (ATB)
ATB is a well-known Alberta lender. Leahy was vice president of ATB for thirty years. Near the end of his ATB tenure, Leahy apparently decided upon a policy of self-help for his retirement planning.
In 1994, Alberta Bakery came looking for a $1.5M loan. ATB head office rejected the application.
Then in 1995, Leahy approved Alberta Bakery’s re-application without going through head office. Alberta Bakery promptly went bankrupt. Alberta Bakery told investigators that they had bribed Leahy. (para 8)
With this fraud evidence, ATB looks at Leahy’s ATB bank accounts. Surprisingly, Leahy had seemed to be particularly flush in 1995. He paid off credit cards, of himself and his children (after having been repeatedly delinquent). (para 8)
ATB could see that the monies into Leahy’s ATB bank account came from Canada Trust. So ATB sought ex parte orders against Canada Trust (a non-party), to reveal its Leahy accounts and say from where the Canada Trust Leahy account monies had originated.
Mason J. grants such orders ex parte and in advance of the issuance of the statement of claim.
Those Canada Trust monies came from Royal Bank.
Mason J. then gave ATB a further ex parte production order against Royal Bank to tell what it knew of the Leahy accounts and the origin of monies into those Royal Bank accounts.
This step revealed bigger monies and linked to a massive ATB loan to West Edmonton Mall which of course Leahy had promoted. (para 35)
Once West Edmonton Mall was accused of bribery they naturally attacked the bona fides of the ex parte application process.
Will the judge chase fraud or will the judge go for ‘charter values’?
Canadian law could have easily gone in the wrong direction at this particular point in common law time. The West Edmonton Mall attack upon the initial ex parte process.
Judges could have taken a nit-picking approach and missed the forest(fraud) for the trees (excessive consideration of charter values between private commercial parties).
WEM accused the moving party on the ex parte with failure of full and frank disclosure. There will always be room for a full and frank disclosure attack in any ex parte. It is the nature of such steps that the moving party doesn’t know everything and doesn’t know everything that is relevant at the initial stage. The full and frank disclosure attack failed.
The real danger for Canadian law (I mean the common law hunting-down of fraud), would have been West Edmonton’s theoretical analogy between the ‘search and seizure’ that occurred ex parte and what West Edmonton wanted Norwich to stand for. West Edmonton wanted, in effect, an inadmissibility finding (akin to Charter s.24). West Edmonton wanted to say that: only if you have already particularized, in advance, the wrongdoer and the reasonable likelihood of uncovering evidence in respect of that wrongdoer – only then can a Norwich order pass review.
West Edmonton rightly said that the evidence against West Edmonton was not any part of the initial ex parte process. The fruits of the search, which search having inadvertently uncovered a trove of bad conduct evidence against West Edmonton, should be inadmissible. (Fruits of the poison tree).
In particular, the prohibited reasoning under Charter cases whereby the state says: ‘Maybe I didn’t have any grounds to search, but the results of the illegal search should nevertheless justify the illegal search.’ This reasoning has generally been called prohibited reasoning.
While the Charter debate usefully rages on, on this state-question (the state sometimes winning, sometimes losing this argument), Mason J. came down definitively on the side of admissibility in civil search and seizure. (Even though apparently Manitoba has a stricter rule). (para 52)
The SCC repeatedly endorsed this decision
