Norwich Relief—SCC Provides Guidance On Pre-Trial Disclosure Orders

On September 14, 2018, the Supreme Court of Canada (SCC) released its decision in Rogers Communications Inc v Voltage Pictures, LLC, 2018 SCC 38 confirming the test set out in Leahy for obtaining a Norwich order (consistently applied by lower courts). This case represents one of the first times the SCC has provided any national guidance on a Norwich Pharmacal order—an extraordinary remedy that allows a party victimized by serious misconduct (such as fraud or theft of intellectual property) to conduct clandestine investigations to locate and secure evidence or assets before formally commencing litigation against the wrongdoers.

In the specific matter before it, the SCC allowed Rogers Communications Inc's (Rogers) appeal, holding that an internet service provider (ISP) is allowed to recover reasonable costs incurred by complying with a Norwich order from a company pursuing claims against copyright violators. However, any costs that overlap between the ISP's