Cross-Cutting Conflicts: Developments in the Use of Norwich Orders in Internet Defamation Cases
T. L. Archibald & R.S. Echlin, eds., Annual Review of Civil Litigation 2016 (Toronto: Carswell, 2016), 129-161
50 Pages Posted: 6 May 2016 Last revised: 28 Mar 2017
Date Written: May 5, 2016
The anonymity afforded to those wishing to post commentary on the internet has given rise to a number of procedural issues in Canadian case law. This paper focuses on one such issue: the need for prospective plaintiffs in defamation actions to "unmask" anonymous commentators in order to be able to bring proceedings against them. It tracks the increasing use of the "Norwich order," A.K.A an order for pre-action discovery, as a means of accomplishing this objective, by examining the leading case of Warman v. Fournier and analyzing how this issue has played out in litigation to date. It also considers the broader issue of how application of the values contained in the Canadian Charter of Rights and Freedoms ― particularly privacy and freedom of expression ― is affecting the disposal of procedural motions.
Keywords: Defamation, Internet, Civil Procedure, Canadian Charter of Rights and Freedoms, Privacy, Freedom of Expression
JEL Classification: K13, K41
Suggested Citation: Suggested Citation