Docket: T-768-25
Citation: 2026 FC 317
Toronto, Ontario, March 9, 2026
PRESENT: Madam Justice Whyte Nowak
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BETWEEN: |
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HELLBOY PRODUCTIONS, INC. |
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Plaintiff |
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and |
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DOE #1 ET AL.
(SEE SCHEDULE 1 FOR LIST OF DEFENDANTS) |
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Defendants |
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and |
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COGECO CONNEXION INC. |
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Non-Party Respondent
(Plaintiff’s Disclosure Motion Only) |
ORDER AND REASONS
I. Overview
[1] The plaintiff, Hellboy Productions, Inc. [Plaintiff], has commenced an action [Action] alleging copyright infringement in respect of its movie, “Hellboy: The Crooked Man”
[Work], by over 2,400 unknown defendants [collectively, the Doe Defendants], each identified by an internet protocol address (also referred to as an IP address) associated with the alleged acts of infringement. The Plaintiff brought motions in writing pursuant to Rule 369 of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules], for Norwich orders to compel four internet service providers [ISPs] to disclose the names and addresses associated with the IP addresses linked to the infringing activities. The non-party ISPs [Non-Party ISPs] against whom these motions were brought, Cogeco Connexion Inc. [Cogeco], Telus Communications Inc. [Telus], Bell Canada [Bell] and Rogers Communications Canada Inc. [Rogers], did not oppose the motions.
[2] The Case Management Judge, Associate Judge Cotter [Motions Judge], dismissed the motions brought against Cogeco, Telus and Bell by Order and Reasons dated October 31, 2025, reported as Hellboy Productions, Inc v DOE #1, 2025 FC 1766 [Hellboy]. The Motions Judge held that the Plaintiff had not satisfied the test for a Norwich order principally because the Plaintiff’s evidence did not show a bona fide claim for copyright infringement and for the additional reason that the Plaintiff’s evidence failed to identify Telus, Cogeco or Bell as the ISPs for the alleged wrongdoers in question (Hellboy at paras 8, 32, 38, 49). The motion for a Norwich order as against Rogers was not decided and has been held in abeyance since it was filed.
[3] The Motions Judge dismissed the Plaintiff’s original motions without prejudice to further motions for similar relief based on “better evidence”
(Hellboy at para 51). This Order and Reasons deal with a fresh motion brought by the Plaintiff seeking a Norwich order as against Cogeco.
[4] Based on my review of the Plaintiff’s revised motion materials, I am granting this motion. The Plaintiff has provided evidence to address the hearsay issues raised by the Motions Judge and to identify Cogeco as the Non-Party ISP for the relevant Doe Defendants. I am further satisfied that the granting of a Norwich order is the only practical source of the information sought by the Plaintiff and that the balancing of the public interests for and against disclosure of the information sought from Cogeco, favours disclosure.
[5] Separate orders shall be issued in respect of similar motions brought against Telus, Bell and Rogers. A still further set of orders shall be issued in respect of similar motions brought against Cogeco, Bell and Rogers in respect of a different movie, titled “Boy Kills World.”
II. Background
[6] The Action alleges that the Doe Defendants have unlawfully offered to upload or stream the Work and/or to unlawfully download the Work utilizing the BitTorrent peer-to-peer [P2P] international network, which is a popular P2P “file sharing”
protocol which enables the decentralized distribution or streaming of movies over the internet between individual internet users.
[7] The Plaintiff’s evidence has identified each Doe Defendant by the IP address used by the Doe Defendant when committing the alleged acts of infringement, as set out in schedules to the Statement of Claim, which include particulars of the dates and times of the infringing acts asserted.
[8] The main relief sought by the Plaintiff on this motion is a Norwich order compelling Cogeco to forthwith disclose to the Plaintiff the name and address of its subscribers who were associated with the IP addresses set out in the relevant schedules attached to the Statement of Claim pursuant to paragraph 41.26(1)(b) of the Copyright Act, RSC 1985, c C-42 [Copyright Act].
[9] Cogeco takes no position on the motion, but consents to the form of the order sought against it by the Plaintiff should the Court grant the Plaintiff’s motion.
III. Preliminary Issue
[10] At the hearing of the motion, I raised an issue related to the Plaintiff’s written submissions, which repeat legal arguments it made on the original motions and argue that this Court can either come to a different conclusion than the Motions Judge or find that the Motions Judge was in error. The arguments are that:
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(a)the presumptions at section 34.1 of the Copyright Act apply despite the Motions Judge’s holding that the presumptions do not apply in the context of a Norwich order (Hellboy at para 28);
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(b)the Motions Judge erred in applying too high a standard in determining whether the Plaintiff had established a bona fide claim as evidenced by some 73 previous orders of the Federal Court which granted Norwich orders based on similar evidence; and
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(c)the Action is a Simplified Action despite the Motions Judge’s holding that it is not (Hellboy at paras 11-14).
[11] Having read the Plaintiff’s post-hearing submissions, I remain of the view that in respect of the motions involving Cogeco, Telus and Bell, these arguments amount to a collateral attack on the Motions Judge’s Order or a disguised appeal (Wilson v The Queen, [1983] 2 S.C.R. 594 at 599). While this Court could consider these arguments on a motion brought pursuant to Rule 51 of the Federal Courts Rules, they are not arguments the Court can entertain on this motion.
[12] The only issue for consideration on this motion is whether the Plaintiff has satisfied the test for a Norwich order based on its revised evidence as was permitted by the Motions Judge (Hellboy at para 51).
IV. Analysis
[13] My analysis starts with a reminder of the test that the Plaintiff must satisfy to obtain a Norwich order, followed by a review of the evidence originally relied on by the Plaintiff to satisfy the test and why the Motions Judge found that evidence to be insufficient. Only then can I assess whether the Plaintiff has brought this motion on better evidence.
A. The test for a Norwich order
[14] In order to obtain a Norwich order, a plaintiff must show:
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(a)a bona fide claim exists against the alleged wrongdoer [First Element];
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(b)the person from whom discovery is sought is:
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more than an innocent bystander, meaning that that person is in some way involved in the matter in dispute;
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the only practical source of information available to the plaintiff; and
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reasonably compensated for the expenses, including legal costs, arising out of compliance with the disclosure order [collectively, the Second Element]; and
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(c)the balancing of the public interests for and against disclosure of the information sought from that person favours disclosure [Third Element] [collectively, the Norwich order test].
(Seismotech IP Holdings Inc v Ecobee Technologies ULC, 2024 FCA 205 at para 6 [Seismotech FCA] citing Rogers Communications Inc v Voltage Pictures, LLC, 2018 SCC 38 at para 18 [Voltage]).
B. The Plaintiff’s evidence on the original motions
[15] The Plaintiff filed the affidavit of Marnie MacDonald [First Law Clerk Affidavit], a law clerk employed by the Plaintiff’s counsel in the firm’s copyright enforcement group, in which she affirmed that:
[3] The relevant movie for this matter that our client has located on P2P networks is set out below (the “Work”). The Plaintiff, the party who owns the copyright in the film, is also listed in the table below.
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Title |
Copyright Owner |
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Hellboy: The Crooked Man |
Hellboy Productions, Inc. |
[4] Attached hereto as Exhibit “A” is a copy of the credits page confirming that the Plaintiff is the owner of the copyright in the Work.
[16] Exhibit “A”
is a screenshot of credits [Credits] that include the following statements:
© 2024 HELLBOY PRODUCTIONS, INC.
ALL RIGHTS RESERVED
HELLBOY PRODUCTIONS, INC. IS THE AUTHOR AND CREATOR OF THIS MOTION PICTURE FOR PURPOSES OF COPYRIGHT AND OTHER LAWS IN ALL COUNTRIES THROUGHOUT THE WORLD.
[17] The Plaintiff’s written submissions relied on the presumption in section 34.1 of the Copyright Act to assert that:
The Plaintiff is listed in the credits of the Work as owning the copyright. Accordingly, copyright is presumed to subsist in the Work, the Plaintiff is presumed to be the maker of the Work, and is therefore presumed to be the owner of its copyright.
[18] The Plaintiff also submitted an affidavit from Thomas Nowak [Nowak] [First Forensic Affidavit], the Chief Executive Officer of Maverickeye UG [Maverickeye], a forensic investigation company who was hired by the Plaintiff to track online piracy of its movies.
[19] The First Forensic Affidavit details how Maverickeye used its proprietary software to identify IP addresses associated with the distributing or uploading of the Work utilizing the BitTorrent P2P network. Nowak explains how Maverickeye linked each of the Doe Defendants to the potential acts of infringement of the Work by their IP address, which entailed: (i) making a direct connection with a device distributing the Work and downloading a potion or full version of the infringing file; (ii) recording and saving file data related to the date and time of the connection and other available information broadcast by the infringing computer which was saved on a secure server and indexed in evidence logs; (iii) human comparison of the infringing file against a control copy of the Work to confirm that the IP address in question was in fact distributing the Work; and (iv) identification of the ISP responsible for each IP address in question using Maverickeye’s software and other publicly available and searchable data. Nowak purported to attach an exhibit listing the IP addresses and the Canadian ISP traced to that address by Maverickeye.
C. The Motions Judge’s assessment of the Plaintiff’s original evidence
[20] The Motions Judge held that the presumptions in subsection 34.1 of the Copyright Act do not apply in the context of a Norwich order motion. The Motions Judge reasoned that the precondition referred to in section 34.1 of the Copyright Act (which refers to a defendant in a civil action having put in issue either the existence of the copyright or the plaintiff’s title to it), cannot be met at this stage of the Action given that the identities of the Doe Defendants are not known and there is no defendant who has the opportunity to test the evidence relied upon by the Plaintiff seeking to get the benefit of the presumption (Hellboy at paras 24, 28).
[21] The Motions Judge then considered whether the evidence in the First Law Clerk Affidavit was sufficient to establish that copyright subsists in the Work and the Plaintiff has standing to assert a claim for copyright infringement (Hellboy at paras 18, 30). He found that it was not for the following reasons:
First, the Law Clerk Affidavit only deals with the matter of ownership of copyright. There is no evidence on subsistence of copyright. Second, the evidence on ownership of copyright is at best, hearsay evidence for which the source is not specified, nor is the basis for the statement that the plaintiff is the owner of the copyright. For example, there is no specific evidence as to the identity of the “maker”. Third, in any event, it is not “best available evidence” on the issue of ownership of copyright. As was stated in ME2 Productions, “the Court is entitled to demand the best available evidence to be filed in support of a motion seeking the extraordinary equitable relief of a Norwich order” (para 114, quoted above). I also note the concerns expressed by Justice Pentney in ME2 Productions regarding an affidavit provided by a law clerk employed by plaintiff’s counsel (see paragraph 98).
[22] The Motions Judge therefore held that the Plaintiff had not shown a bona fide claim for copyright infringement and, therefore, could not establish the First Element of the Norwich order test (Hellboy at paras 31, 32). The Motions Judge also found that the Plaintiff’s evidence failed to make out the Second Element as the evidence did not show the matched ISP for the alleged wrongdoers (Hellboy at para 8, 38, 49).
The question is whether the Plaintiff has brought this motion on better evidence, which entitles it to the order sought. I find that it has.
D. The Plaintiff’s Revised Evidence
(1) The First Element of the Norwich order test
[23] The Plaintiff has provided a supplementary affidavit of Marnie MacDonald affirmed November 10, 2025 [the Revised Law Clerk Affidavit], the same law clerk employed by the Plaintiff’s counsel who provided the First Law Clerk Affidavit. The Revised Law Clerk Affidavit addresses the issues raised by the Motions Judge: the affiant has received a copy of the Work from the Plaintiff; she identifies the Work by its title; she has reviewed the Work herself and attaches a screenshot of the Credits which shows the Plaintiff’s assertion of copyright through the use of the copyright symbol and identifies the Plaintiff as the author and creator of the Work for purposes of copyright. Both the Revised Law Clerk Affidavit and the Credits identify the Work as a movie with the affiant further noting that the Work is a superhero film. The Revised Law Clerk Affidavit also provides copies of first and second notices that were provided to the Doe Defendants via Cogeco alleging infringement of the Plaintiff’s copyright in the Work and provides a summary chart of the notices and Cogeco’s responses [Summary Chart].
[24] A supplementary affidavit of Thomas Nowak [Nowak] affirmed November 7, 2025 [Revised Forensic Affidavit], provides the same evidence of infringement from the First Forensic Affidavit and addresses the issues raised by the Motions Judge related to the identification of the Non-Party ISPs.
[25] I find the First Element of the Norwich order test has been made out on a limited merits-based assessment of the Plaintiff’s evidence, which supports a claim in copyright infringement against the Doe Defendants that is neither frivolous nor without justification (Seismotech FCA at paras 23, 18 and Glaxo Wellcome PLC v MNR, [1998] 4 FC 439 (FCA) at paras 24 and 44). The Plaintiff has provided evidence showing the Plaintiff’s assertion of ownership and the subsistence of copyright in the Work. The forensic evidence shows the unauthorized use of the Work by the unnamed Doe Defendants behind the IP addresses thereby providing the requisite “plausible basis for assuming that there was copyright infringement”
by the Doe Defendants (Seismotech FCA at para 21, Seismotech Ip Holdings Inc v John Doe, 2023 FC 1649 at para 36 [Seismotech FC] aff’d Seismotech FCA).
[26] The bona fide nature of the claim is supported by the Plaintiff’s Statement of Claim, which provides a factual basis for the Plaintiff’s claim to copyright in the Work and its infringement by the persons behind the identified IP addresses (Seismotech FCA at para 29). The fact that the Statement of Claim has issued, bolsters the legitimacy of the Plaintiff’s purpose in seeking the identity of the Doe Defendants (BMG Canada Inc v John Doe, 2005 FCA 193 at para 34 [BMG]). Together, this evidence is sufficient to establish a non-frivolous claim (Seismotech FCA at paras 12, 23).
[27] I am also satisfied that the Plaintiff’s revised evidence does not run afoul of the Motions Judge’s concern that a Court being asked to grant such extraordinary relief is entitled to the “best available evidence”
(Hellboy at para 30 citing ME2 Productions, Inc v Doe, 2019 FC 214 at para 114 [ME2 Productions]).
[28] In ME2 Productions, the impugned evidence came from law clerks whose affidavits attached sworn declarations from Maverickeye describing their forensic systems and identification of the potential wrongdoers through IP addresses (ME2 Productions at para 14). The evidence was intended to: prove how the wrongdoers were identified; show that the copyright owner had provided notice to the ISP; and link the IP addresses to the appropriate ISP (ME2 Productions at paras 14-15). The law clerks’ affidavits stated merely that they “repeat and rely on”
the declarations and believed them to be true (ME2 Productions at para 16). Justice Pentney considered this evidence to be inadmissible hearsay, which failed to provide the basis for the deponents’ belief that the information was accurate as required by Rule 81(2) of the Federal Courts Rules, and was “expert opinion evidence”
which did not comply with Rule 51.2 of the Federal Courts Rules (ME2 Productions at paras 92, 109, 111).
[29] Like the evidence in ME2 Productions, the First Law Clerk Affidavit was based on hearsay and lacked a proper basis for the deponents’ belief. While the Motions Judge questioned the use of a law clerk affidavit, he did not decide whether such evidence would always be considered improper on a Norwich order motion (Hellboy at para 30).
[30] In this case, I am satisfied that the Revised Law Clerk Affidavit does not offend the concern raised in ME2 Productions for two reasons.
[31] First, the best available evidence requirement must be understood in the context of the issue it is put forward to prove.
[32] On this motion, the Plaintiff is not required to prove the subsistence of copyright and its ownership of the Work (BMG at paras 15, 32, 34), proof of which might entail evidence of the maker and various legal agreements reflecting the chain of title to the Work. Nor is the Plaintiff required to make out a lesser standard of prima facie infringement, which would require evidence of facts that “on their face”
could make out the Plaintiff’s assertion of copyright in the Work (Seismotech FC at para 14). This means that in order to establish a bona fide claim for copyright infringement, something still less must be sufficient. In Seismotech FC, Justice Grammond held that this standard is made out based on “some evidence”
showing that there is a legitimate or plausible basis for the proposed claim, as opposed to the mere assertion of a cause of action without any factual foundation (Seismotech FC at paras 14-16, Seismotech FCA at para 21).
[33] The Plaintiff’s revised evidence meets this standard: the Credits display the use of a copyright symbol and shows the Plaintiff’s claim to be the author, creator and owner of the Work for the purposes of copyright, which satisfies the Plaintiff’s purported and plausible standing to bring a claim for copyright infringement. Both Revised Law Clerk Affidavit and the Revised Forensic Affidavit identify the Work as a superhero film, a fact that supports the subsistence of copyright in the Work. The Revised Forensic Affidavit identifies the infringing activities, links those activities to the IP addresses and the appropriate ISP and justifies the need for the relief sought from Cogeco.
[34] Second, I have considered whether the supporting affidavit on this motion should have come directly from someone other than a law clerk employed by the Plaintiff’s counsel. Unlike the use of the law clerk affidavits in ME2 Productions, the use of the Revised Law Clerk Affidavit on this motion falls within the generally accepted use of a law clerk affidavit to identify documents and provide non-contentious facts (Mapletoft v Christopher J Service, 2008 CanLII 6935 at paras 9, 13-15, Pluri Vox Media Corp v Canada, 2012 FCA 18 at paras 11-14). The facts upon which the Plaintiff relies to assert copyright in the Work comes from the Credits and the non-contentious fact that the Work is a superhero film. In my view, insisting on the same evidence but sworn instead by someone employed by the Plaintiff, adds nothing and detracts from the intended efficiencies of these types of motions.
(2) The Second Element of the Norwich order test
[35] The Second Element of the Norwich order test requires that the Plaintiff demonstrate that the Non-Party ISP has information that pertains to an issue in the Action and that the order sought is the only reasonable means of obtaining the personal identification information of the Doe Defendants. The Plaintiff must also show that it is fair to require that this information be provided to the Plaintiff and there are safeguards in place to avoid abuse of the Court’s process (Seismotech FCA at para 6 and BMG at para 35).
[36] The Motions Judge was critical of the Plaintiff’s evidence on the original motions as it failed to link the IP addresses of the alleged wrongdoers to the particular Non-Party ISPs. The Motions Judge acknowledged that this seemed to be inadvertent: a paragraph of the First Forensic Affidavit purported to provide this information but did not do so (Hellboy at paras 36-38). The Motions Judge also faulted the Plaintiff for providing evidence that was not organized in a manner that allowed the Court to easily understand and verify it (Hellboy at para 46).
[37] The Plaintiff has remedied this gap in the evidence on this motion. The Revised Forensic Affidavit confirms that the identified Non-Party ISP responsible for the identified IP addresses were identified by Maverickeye using a third-party service which provides weekly updated IP address allocations to ISPs worldwide. The Revised Law Clerk Affidavit also attaches a Summary Chart that indexes each subscriber to the reference number for the notice received and provides Cogeco’s response, none of which question the Plaintiff’s suggestion that the IP addresses belong to it.
[38] I find that this revised evidence is sufficient to link the IP addresses referred to on this motion to Cogeco as the appropriate Non-Party ISP and shows that the Plaintiff’s assertion of copyright infringement is not speculative (Seismotech FC at para 38).
[39] The remainder of the factors to be considered as part of the Second Element of the Norwich order test are answered by paragraph 4 of the form of the requested order (paragraph 5 of this Order), which does two things. First, it limits the use to which the information that Cogeco provides may be used by the Plaintiff thereby ensuring the Court’s processes are not abused. Second, it requires that the disclosed information be maintained as confidential, which safeguards the Doe Defendants’ personal information.
[40] Given that only an ISP can correlate an IP address to the identity of its customer, the Plaintiff has satisfied me of the need for the requested disclosure.
(3) The Third Element of the Norwich order test
[41] Under the Third Element of the Norwich order test, the Court must consider whether the interests of justice favour the disclosure sought considering the interests of the Plaintiff, the Doe Defendants, the Non-Party Respondents and the administration of justice (Seismotech FCA at para 6, Seismotech FC at para 17 citing 1654776 Ontario Limited v Stewart, 2013 ONCA 184 at para 77). Having found that the first two elements of the Norwich order test had not been made out, the Motions Judge did not consider this last element on the Plaintiff’s original motion.
[42] I find that the interests of justice favour the disclosure of the information sought at this stage of the Action after weighing the legitimate interests of the Plaintiff in the ability to quickly and effectively enforce its asserted rights in the Work (Voltage at para 46) against the legitimate privacy concerns of the persons sought to be identified. Without the requested identifying information from Cogeco, the Plaintiff will be left without recourse to protect its rights in the Work (BMG at para 35). I am also satisfied that the Doe Defendants were given fair warning of the possibility that their personal information could be disclosed by Cogeco. Cogeco provided the Doe Defendants with first and second notices from the Plaintiff’s counsel which asserted the Plaintiff’s copyright in the Work and alleged infringement of the Work by the Doe Defendants. The first notice advised of Cogeco’s obligation to retain records that will allow for the identification of the Doe Defendants and the second notice warned of the Plaintiff’s ability to make a formal legal request to Cogeco to compel the Doe Defendants’ identity.
[43] I have also considered the interests of Cogeco as a Non-Party ISP and am satisfied that it will not be put to any undue inconvenience or expense given that the information being sought by the Plaintiff is the same information that Cogeco has already assembled and retained pursuant to its obligations under the Copyright Act. Moreover, Cogeco does not oppose the order sought and had input into the form of the order, which includes a provision for the payment of Cogeco’s reasonable costs incurred to discern the subscribers’ identities (BMG at para 36).
V. Conclusion
[44] For the foregoing reasons, I find that Cogeco’s disclosure of the personal information of Doe Defendants in the attached schedule is justified and appropriate. Accordingly, this motion is granted.
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