The Norwich Order: Can Third Parties Be Compelled to Disclose Information?
What is a Norwich order? What is the test that a party needs to meet to obtain a Norwich order? The Ontario Superior Court’s decision in Nivora Group LLC v. Ping et al, a case under review for leave to appeal, addresses these questions.[i]
The Norwich Order
A Norwich order is an equitable remedy that, when granted, allows a plaintiff to obtain documents, records and information from a third party (i.e., a party against whom there is no cause of action) to identify alleged wrongdoers, find and preserve evidence of wrongdoing, determine whether an action exists and trace and preserve assets.[ii] and to obtain information about the alleged wrongdoing so that the plaintiff may bring proceedings or determine whether they should bring proceedings.[iii] The order and its name come from the 1974 UK case, Norwich Pharmacal Co. v. Customs and Excise Commissioners. Canadian courts have since adopted the Norwich remedy. Typically, a Norwich remedy is sought before litigation commences, and it is brought in the form of an Application against the third party.
The requirements that a moving party must meet to obtain a Norwich order are outlined in the 5-part test:
- the plaintiff must have a bona fide claim against a wrongdoer;
- the party against whom the Norwich order is sought must have a connection to the wrong beyond being merely a witness to it;
- the party against whom the Norwich order is sought must be the only practicable source of the information;
- the party seeking the disclosure must undertake to compensate the person against whom the Norwich order is sought for all expenses arising out of the discovery; and
- the interests of justice must favour obtaining the information.[iv]
Facts
Please note that at the time of writing, the matter is under appeal.
In Nivora Group LLC v. Ping et al, the plaintiffs are Nivora Group LLC, a company incorporated in the United Arab Emirates that had purchased the assets of Action Action Action LLC (“AAA”), and AAA, a New York corporation created to serve the needs of the Himalayan Farm Alliance Committee (the “Community”), a community of volunteers who advocate against the Chinese Communist Party (“CCP”).[v] The defendants are three Ontario-based individuals, Tang Ping, William Fuwei, and Thomas Zhai, who were influencers within the Community and had extensive experience in art and blockchain development.[vi]
The parties agreed that the defendants would create a crypto token for the Plaintiffs. The token, called “TDCCP” (“Take Down the Chinese Communist Party”) had no inherent financial value, was a collectible that signified the community’s advocacy against the CCP, and its price fluctuated based on changes in demand.[vii] The parties documented their agreement, including the various phases of the distribution of TDCCP, in a White Paper.[viii] The white paper provided that 5% of the total token supply (32 million tokens) would be allocated to a “Community Fund” for team operations, including technology development, marketing, promotion, and community building.[ix] The parties disputed whether the defendants were entitled to use those tokens as compensation without express authorization from the plaintiffs.[x]
Between March and May 2025, TDCCP tokens were converted into USDC and SOL (which are relatively more common crypto assets that can be exchanged for cash in a recognized national currency).[xi] The assets worth $6,229,741.84 USD were then transferred into 22 cryptocurrency wallets, against which the plaintiffs sought the Norwich order and 20 of which were controlled by the defendants.[xii] The plaintiffs’ materials did not include transactions in which the defendants sent the plaintiffs worth more than $14,700,000 USD.[xiii]
The dispute was therefore centred around whether the defendants had misappropriated crypto assets, including funds associated with the Community Fund, and whether cryptocurrency transferred to wallets under the defendants’ control had been improperly retained, converted, or distributed. The motion before the court concerned the plaintiffs’ request for a Norwich order compelling cryptocurrency exchanges, namely Kraken and VirgoCX, to disclose information regarding the wallets and transactions in order to trace the allegedly misappropriated assets and identify the recipients of those assets.[xiv]
The Court’s Analysis
In applying the 5-part test for obtaining a Norwich order, the Court found that the plaintiffs failed on part three of the test. On the first requirement, the Court agreed that the plaintiffs did meet the low bar of a bona fide claim against the defendants for breach of contract, misappropriation of crypto assets, and breach of trust.[xv] In analyzing the second requirement, the Court also found that the two Exchanges have a connection to the alleged wrongs beyond being a mere witness to them.[xvi]
However, the Court found that the Exchanges were not the only practicable source of the information that the plaintiffs sought on this Norwich motion.[xvii] The plaintiffs relied on the logic that it would be unreasonable for a plaintiff who believes they are the victim of fraud to approach the alleged wrongdoer to provide information.[xviii] The Court found this reasoning to be flawed because the plaintiffs brought the motion on notice, the defendants had not refused to provide information, the defendants provided a significant amount of information through affidavit evidence and cross-examinations, and the defendants could be asked more questions at discovery.[xix]
Importantly, the Court noted that the plaintiffs stated that the Norwich order would save the parties expenses related to the discovery process to access the same information, which is not the purpose of a Norwich order.[xx] Furthermore, a Norwich order is not meant to serve as a substitute for the normal discovery regime, nor is it to be used to circumvent the discovery process. The Court found that the plaintiffs were attempting to circumvent the discovery process.[xxi]
Key Takeaways
This decision highlights the way in which courts will apply the test for obtaining a Norwich order. Therefore, key takeaways for parties seeking to utilize this equitable remedy include:
- A Norwich order remains an extraordinary and intrusive remedy that courts will grant sparingly and only where it is truly necessary.
- The threshold for establishing a bona fide claim is low; an applicant needs only to demonstrate that its claim is not frivolous or vexatious.
- Even where a plaintiff has a bona fide claim, a Norwich order will not be granted unless the plaintiffs meet the balance of the 5-part test.
- Courts are reluctant to grant a Norwich order where the information can be obtained through the ordinary discovery process, including examinations for discovery or a production motion against non-parties under Rule 30.10 of the Rules of Civil Procedure.[xxii]
- A Norwich order is not intended to serve as a substitute for discovery or as a mechanism to circumvent the procedural requirements of ongoing litigation.
Read the endorsement from the Court linked here.
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[i] Nivora Group LLC v. Ping et al, 2026 ONSC 2943 [hereinafter Nivora].
[ii] Alberta Treasury Branches v. Leahy, 2000 ABQB 575, 270 A.R. 1, at para. 106, aff’d 2002 ABCA 101, 303 A.R. 63, leave to appeal refused [2002] S.C.C.A. No. 235; GEA Group AG, at para. 50.
[iii] Nivora at para. 34; Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.); Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38, [2018] 2 S.C.R. 643, at para. 18.
[iv] Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38, [2018] 2 S.C.R. 643 at para. 18.
[v] Nivora at paras. 4-5.
[vi] Nivora at para. 6.
[vii] Nivora at paras. 7-8.
[viii] Nivora at para. 11.
[ix] Ibid.
[x] Nivora at paras. 12-13.
[xi] Nivora at paras. 9 and 16.
[xii] Nivora at paras. 16-17.
[xiii] Nivora at para. 24.
[xiv] Nivora at para. 23.
[xv] Nivora at para. 42.
[xvi] Nivora at para. 43.
[xvii] Nivora at para. 45.
[xviii] Nivora at para. 46.
[xix] Ibid.
[xx] Nivora at para. 48.
[xxi] Nivora at paras. 49 and 59.
[xxii] R.R.O. 1990, Reg. 194: Rules of Civil Procedure, r. 30.10.
Tags: Civil Litigation Law, Contract Disputes, Fraud Litigation, and Investigations.