A “Norwich order” is named after the English case of Norwich Pharmacal Co. v Customs and Excise Commissioners . This type of order allows a party to obtain information from a third party (against whom the moving party has no cause of action). To obtain such an order, in addition to establishing a valid claim against the defendant, the plaintiff must establish (among other things) that the third party against whom discovery is sought is both more than a mere witness to the alleged wrongdoing and the only practical source of information available. The plaintiff will be expected to pay a reasonable fee to such third party and to reimburse any expenses incurred by the third party as a result of the Norwich order. Mareva injunctions, Anton Piller orders and Norwich orders are available throughout Canada, including in Ontario and Québec. These types of orders are generally sought without giving notice to the defendant. As a result, the moving party must make full and frank disclosure to the court, including disclosure of facts or arguments that may undermine the moving party’s case. PRE-JUDGMENT ATTACHMENT ORDERS AND SEIZURES In Ontario, if the proceedings concern a claim to an interest in land, the plaintiff can, with the authorization of the court (which may be sought without notice to the defendant), register a “certificate of pending litigation” against the title to the property. Such registration will not limit the disposition of the property, but it will put third parties on notice of the claims of the plaintiff that can lead to an eventual charge on the property. In Québec, at any time before judgment, a plaintiff may apply to a judge for authorization to seize the defendant’s property before judgment if there is reason to fear that recovery of the claim might be jeopardized
without the seizure. The property is seized by a court officer and then entrusted to a guardian designated by the court, unless the plaintiff authorizes the defendant to remain in possession of the seized property. The property seized before judgment will not be handed over to the plaintiff until there is a final judgment in its favour on the merits. A plaintiff may also seize, before judgment and without the authorization of a judge, the defendant’s property in certain exceptional cases specifically provided for by law, including when the property is movable (chattel) property that a plaintiff has a legal right to revendicate.
Trial Practice in Canada
PRE-TRIAL PRACTICE In Ontario, once documentary and oral discovery have been completed, a pre-trial conference is held in which the court will try to find ways to assist the parties in resolving the case or at least to simplify the case by narrowing the issues in dispute. In Québec, such pre- trial conferences only take place in some cases. In both provinces, a party has the right to seek admissions from the other party in advance of trial. WITNESSES In both Ontario and Québec, the parties may call any witnesses and introduce any evidence into the record that they believe might support their positions, subject to the rules of evidence. A witness, once duly sworn, will first be examined by the party that called the witness and will then be cross-examined by the other party.
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Doing Business in Canada
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