CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, Michael Nowina and Bryan Hsu, Baker McKenzie
of privileged information being obtained, the court will typically appoint an independent supervising solicitor to oversee the search and ensure privileged materials are not disclosed. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Parties may seek what is known as a “Norwich” or “Norwich Pharmacal” order to require third parties to produce information before a lawsuit has been initiat - ed or served. Norwich orders have been used by par - ties to obtain information necessary to determine the identity of a wrongdoer, to evaluate whether a cause of action exists, to plead a known cause of action, to trace assets or to preserve evidence or property. To obtain a Norwich order, the claimant must: • provide sufficient evidence to raise a bona fide claim; • demonstrate that the third party from whom the information is sought is involved in the acts com - plained of; • prove that the third party is the only practicable source of the information available; • confirm that it will indemnify the third party for costs and expenses arising out of compliance with the order (in addition to its legal costs); and • demonstrate that the interests of justice favour the disclosure. Norwich orders are increasingly being used by claim - ants who have been victimised/defrauded by anony - mous parties online and thus require information from, for example, internet service providers to identify the perpetrator. 2.4 Procedural Orders The procedural orders discussed previously, including Mareva injunctions and Anton Piller orders, are often sought ex parte – that is, without notice to the defend - ant. When a claimant seeks these orders on an ex par - te basis, they are under a continuing duty to provide full, frank and fair disclosure. In effect, this means that the party seeking the order must be forthright with all the evidence – particularly in respect of evidence that might be considered helpful to the litigation opponent.
This obligation extends to providing the court with any law adverse to the claimant’s position. Failure to provide full and frank disclosure may result in the ex parte order being set aside and/or signifi - cant costs (up to full indemnification) being awarded to the defendant. As noted previously, generally, the party seeking the order will also need to provide an undertaking for damages to the defendant, which may be significant if it is later determined the order was unjustified. 2.5 Criminal Redress Concurrent criminal complaints and civil actions are commonplace in cases of fraud. To maximise recov - ery potential, experienced fraud counsel can advise on timing issues with respect to the sequence of commencing civil claims (with any related freeze or injunctive relief) and law enforcement reporting. Vic - tims of fraud must be careful not to use the threat of criminal proceedings (or the withdrawal of complaints) as leverage within a civil proceeding, and should be mindful of the implied/deemed undertaking rule which provides that evidence or information obtained in dis - covery during a civil proceeding can only be used for that proceeding. Under the Canadian Victims’ Bill of Rights, victims of fraud in Canada may seek an order for restitution in criminal proceedings as an additional method of redress. Criminal prosecution may in some cases delay the progression of parallel civil claims. A defendant may apply to stay the civil action pending resolution of criminal charges. 2.6 Judgment Without Trial Judgments can be rendered without the necessity of a trial through either default judgment or summary judg - ment. The specific procedures vary between Canadi - an provinces and territories, but generally, a claimant may move for default judgment where a defendant fails to file a defence. Where the claim is for unliqui - dated damages, which is generally the case in fraud cases, the claimant may need to prove its allegations by way of affidavit evidence. Similarly, the rules of civil procedure in the different provinces and territories provide mechanisms for
89 CHAMBERS.COM
Powered by FlippingBook