The Devil’s in the Details: Norwich Orders Denied Against Internet Service Providers

On a decision fittingly released this Halloween, the Federal Court in Hellboy Productions, Inc. v DOE #1, 2025 FC 1766 denied three motions seeking Norwich orders to compel Internet Service Providers (“ISPs”) Telus, Cogeco, and Bell to disclose the names and addresses associated with certain IP addresses of over 2,400 unknown defendants. In the underlying action, the Plaintiff, Hellboy Productions, Inc., alleges that each unnamed defendant unlawfully downloaded and/or unlawfully made available the movie Hellboy: The Crooked Man (the “Work”), resulting in copyright infringement of the film.

While none of the ISPs made submissions opposing the Plaintiff’s motion, the Court explained that lack of opposition from the ISPs alone was not sufficient to grant to the motions. Rather, given the privacy interests of the unidentified defendants, the Court must be satisfied that the legal test for a Norwich order has been met. This test, recently reviewed by the Federal Court of Appeal in Seismotech IP Holdings Inc., 2024 FCA 205, requires:

(a) that there exists a bona fide claim against the alleged wrongdoer;

(b) that the person from whom discovery is sought (i) is not simply an innocent bystander but instead involved in some way in the dispute; (ii) is the only practical source of information to the moving party; and (iii) is reasonably compensated for any expenses arising from compliance with the order; and

(c) that, upon balancing the public interests both for and against the disclosure, disclosure is favoured.

Ultimately, the Court was not satisfied the test had been met based on the evidence before it, dismissing all three motions to the River Styx.

First, the Court found a lack of a bona fide claim against the defendants. The Plaintiff could not rely on section 34.1 of the Copyright Act, which provides a rebuttable presumption of the existence of the copyright and the title to it when put into issue by the defendant. It was determined that, because the identities of the defendants are unknown, there could not be a defendant who has put title or subsistence into issue, and thus section 34.1 did not apply.

The only evidence adduced by the Plaintiff to establish the existence and title of copyright was a law clerk affidavit, which simply (i) stated that the Plaintiff was the copyright owner of the Work, and (ii) included as an exhibit a screenshot of the credits in the film, which stated that the Plaintiff was the author and creator of the Work. This evidence was insufficient to establish subsistence and ownership of the Work as it did not speak to the issue of copyright subsistence, constituted hearsay evidence, and did not constitute “best available evidence,” of which the Court is entitled to in a Norwich order motion.

Additionally, the Court found the Plaintiff’s evidence insufficient to meet the second step of the test for a Norwich order. The Plaintiff put forward an affidavit from the CEO of a business monitoring BitTorrent networks for infringing acts, which stated that the IP addresses of alleged infringers had been located and were associated with Telus, Cogeco, and Bell. However, it failed to identify which ISP (whether Telus, Cogeco, Bell, or another altogether) the IP address was connected to.

The Plaintiff also relied on exhibits included in the law clerk affidavit which consisted of email correspondence between the Plaintiff’s counsel and each ISP, but the Court found this evidence also insufficient. This is because not all ISP correspondence actually confirmed that the IP address mentioned in the email was one of their customers, and in any case, the expansive evidence was put forth in a manner that was not “organized in a manner which can be easily understood and verified.”

The Court dismissed the Plaintiff’s motions without prejudice to bring further motions for similar relief with better evidence.