Two recent Ontario decisions, GEA Group AG v. Ventura Group Co. and York University v. Bell Canada Enterprises and Rogers Communications Inc. have clarified the circumstances under which courts should grant the extraordinary equitable remedy of pre-action discovery, commonly known as a Norwich order.

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In its decision earlier this year in UBS Securities Canada, Inc. v. Sands Brothers Canada, Ltd., the Ontario Court of Appeal examined the extent to which industry custom and common practice may be utilized in determining whether a contract has been formed between two parties. In particular, the investment industry practice of conducting multi-million dollar deals over the telephone was cited by the Court in finding that a binding agreement for the purchase and sale of shares had been concluded between the parties to this litigation and in ordering specific performance of that agreement.

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