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).
The Ontario Court of Appeal has considered Alberta Treasury Branches on two occasions. Remarkably, the Court of Appeal Norwich decision in 1654776 Ontario Ltd. v. Stewart, [2013] O.J. No. 1362 has a degree of general importance.
“165” bought shares and options during the Ontario Teachers’ Pension Plan hostile take-over attempt of BCE in 2007. The options rose on the news that there would be an over-priced buy-out by Teachers. Holders of options were set to gain 1000 percent. (para 14).
Then the Globe and Mail published an article suggesting that the deal might not go through. Apparently inside sources were saying so.
Naturally the option- price crashed and the plaintiff wanted the names of the insiders who spoke to the Globe and Mail.
The Court at first instance and on appeal had to consider the requirements of pre-action discovery.
Here is how the motion judge set out the Norwich test:
[31] Because this application seeks the disclosure of confidential newspaper sources, two lines of analysis necessarily intersect. The first requires a consideration of the Norwich criteria. The second, the application of the Wigmore test.
[32] In order to satisfy the five-part Norwich test, the applicant must show that:
(i) it has a valid, bona fide, or reasonable claim; in cases such as this where freedom of expression interests are involved, the first-level hurdle has been raised and the applicant must show a prima facie case;[10]
(ii) the respondents are somehow involved in the acts complained of;
(iii) the respondents are the only practicable source of the information;
(iv) the respondents can be indemnified for any costs of the disclosure; and,
(v) the interests of justice favour the obtaining of the disclosure.[11]
Court of Appeal correction of motion judge:
The Court of Appeal made a point of the motion judge’s error in stating the bona fide claim requirement, (which is the first stage of a five step Norwich test). The motion judge got it wrong. (para 47). The motion judge would have required a higher showing of bona fides in a ‘journalist’ case. This was an error. Public interest considerations are reserved for step 5 of Norwich (para 49).
It is here on step 1 of the Norwich test requiring a ‘reasonable claim’ be shown, that Juriansz J.A. relies upon Alberta Treasury (para 50).
Juriansz J.A. then makes reference to Straka v. Humber River Regional Hospital (2000), 51 O.R. (3d) 1. The importance of this reference is to relax the first step requirement that you are hunting for documents against an identified wrongdoer. “165” did not know the name of the wrongdoer, which was the precise information he was seeking from the Globe and Mail.
In Straka, a doctor listed some references in his application for hospital privileges. He was rejected for privileges. He sought the references from the hospital so he could sue for defamation.
Right here, a lesser judge would have denied the doctor’s pre-action discovery claim by saying it was speculative, or one of those other words, held in judicial reserve, for holding the bar too high.
Morden J.A. said the doctor had raised a reasonable claim (even though he did not know if any references had actually done anything wrong. The hospital argued that Norwich is only available if you already know the exact name of the wrongdoer. Morden said that is too high a standard (para 56).
The Norwich claimant does not need to show a prima facie case (para 59).
Now you ask: What’s the difference in reality?
If the Norwich claimant does not need to show a prima facie case, that means he does not need to show the identity of the wrongdoer, that there was even certainty that a wrongdoing occurred, that the defences can be overcome. This is a lot of relaxations.
You know what happens next:
Ultimately Morden J.A. denied the doctor’s request and Juriansz denied the shareholder’s request for other reasons.
That makes all that has been said above obiter not ratio. Judges are looser with obiters. Their minds are not tightly focused upon the one reason why a ruling issued (ratio). With the ratio, they must get the exact issue precisely correct. Obiter, not so much – to be dealt with another day. They can afford to say things like: granted you have a good case but…
