Norwich order granted since benefits of getting at truth outweigh privacy interests, ruling says
The Superior Court of Justice of Ontario has granted a Norwich order to compel Metrolinx to disclose the identity of an anonymous complainant. Metrolinx had refused to reveal the name based on its confidentiality and privacy policies.
In this case, the applicants sought to disclose the identity of a person who had sent a complaint via email to Metrolinx executives. The complaint alleged criminal activities – including fraud, racketeering, and embezzlement – on the part of the individual applicants.
Although the complainant expressed uncertainty about whether the alleged fraud had occurred, they claimed to have knowledge of the scheme and requested that their identity remain confidential for fear of retaliation.
The applicants argued that these allegations lacked basis and caused reputational harm, emotional distress, and economic loss. They intended to file claims for defamation, intentional infliction of mental distress, and other related torts against the complainant.
Metrolinx opposed the application for a Norwich order. Metrolinx argued that revealing the complainant’s identity would undermine public trust and confidence in its commitment to privacy and confidentiality.
Disclosure compelled
In Taylor v. Metrolinx, 2024 ONSC 4774, the Ontario Superior Court of Justice granted the Norwich order to compel the disclosure of the complainant’s identity. The court ruled that the public interest in obtaining the truth and allowing the applicants to pursue their legal claims outweighed the complainant’s privacy interests.
The court held that the applicants had a bona fide claim against the complainant, given that they contemplated causes of action including defamation, intentional infliction of mental distress, and interference with economic relations.
The court noted that the complaint contained serious allegations of criminal activity that could lower the applicants’ reputation in the eyes of a reasonable person. The court also noted that Metrolinx’s privacy policy explicitly allowed for the disclosure of personal information when required by law or by court order.
The court rejected the argument that confidential source privilege protected the complainant’s identity. The complainant could not have reasonably expected their identity to remain confidential when sending the unsolicited email to Metrolinx executives, the court said.
The court found that the relationship between Metrolinx and the complainant did not warrant protection under the four-part “Wigmore” test, as confidentiality was not essential to the relationship.
Specifically, the complainant was not acting in the capacity of an employee or whistleblower seeking protections but as an external party making serious allegations against the applicants, the court explained. As such, the public interest in encouraging anonymous complaints of fraud did not outweigh the applicants' right to pursue justice, the court concluded.
