Executive Summary: Key Legal and Evidentiary Issues

• Hellboy Productions, Inc. sought Norwich orders to compel four ISPs to disclose subscriber identities linked to over 2,400 IP addresses allegedly involved in copyright infringement of the movie "Hellboy: The Crooked Man."

• Associate Judge Cotter initially dismissed the motions, finding the plaintiff failed to establish a bona fide claim due to insufficient evidence on copyright subsistence and ownership, and hearsay concerns with the law clerk affidavit.

• Statutory presumptions under section 34.1 of the Copyright Act were held inapplicable in the Norwich order context because no identified defendant had put copyright ownership in issue.

• Evidence linking the IP addresses to the specific ISPs (Telus, Cogeco, Bell) was found deficient, as the forensic affidavit's exhibits failed to identify any ISP despite purporting to do so.

• On a renewed motion against Cogeco, Madam Justice Whyte Nowak found the plaintiff's revised evidence — including a supplementary law clerk affidavit and revised forensic affidavit — sufficient to satisfy all three elements of the Norwich order test.

• Attempts by the plaintiff to relitigate the Motions Judge's earlier legal conclusions were characterized as a collateral attack or disguised appeal and were not entertained on the fresh motion.

Background and the parties involved

Hellboy Productions, Inc. commenced an action in the Federal Court (Docket T-768-25) alleging copyright infringement of its movie "Hellboy: The Crooked Man." The defendants were over 2,400 unidentified individuals, each designated as a "Doe Defendant" and identified solely by the internet protocol (IP) address used during the alleged acts of infringement. The plaintiff alleged that these individuals unlawfully uploaded, streamed, or downloaded the movie using the BitTorrent peer-to-peer file-sharing network. To pursue its claims, the plaintiff needed to learn the identities behind the IP addresses, which only the internet service providers (ISPs) could provide.

The alleged infringement and the role of Maverickeye

The plaintiff retained Maverickeye UG, a forensic investigation company led by CEO Thomas Nowak, to track online piracy of its movies. Maverickeye used proprietary software to monitor BitTorrent networks, making direct connections with devices distributing the movie, downloading portions or full versions of infringing files, recording connection data including dates and times, and comparing the infringing files against a control copy of the work to verify the infringement. The IP addresses identified through this process were then traced to Canadian ISPs using Maverickeye's software and publicly available data.

The original Norwich order motions and their dismissal

The plaintiff brought three written motions under Rule 369 of the Federal Courts Rules for Norwich orders compelling Cogeco Connexion Inc., Telus Communications Inc., and Bell Canada to disclose subscriber names and addresses associated with the relevant IP addresses. A fourth motion against Rogers Communications Canada Inc. was held in abeyance. Associate Judge Cotter dismissed the motions against Cogeco, Telus, and Bell on October 31, 2025 (reported as 2025 FC 1766), finding the plaintiff's evidence deficient on two grounds. First, the plaintiff had not established a bona fide claim for copyright infringement: the law clerk affidavit only addressed ownership and not subsistence of copyright, the ownership evidence was hearsay without a specified source, and it did not constitute the "best available evidence" required for the extraordinary equitable relief of a Norwich order. Second, the Nowak Affidavit, which purported to link IP addresses to specific ISPs, failed to actually identify any ISP in its exhibits — a gap the law clerk affidavit could not remedy because the notice-and-response correspondence was disorganized and, in the case of Cogeco, "unintelligible."

The applicability of copyright presumptions and simplified action rules

Associate Judge Cotter also addressed the plaintiff's reliance on the presumptions in section 34.1 of the Copyright Act, which presume copyright subsistence and ownership where certain conditions are met. He held that these presumptions do not apply in the Norwich order context because the statutory precondition — that "the defendant puts in issue either the existence of the copyright or the title of the plaintiff to it" — cannot be satisfied when the defendants' identities are unknown and no defendant has had the opportunity to test the evidence. Separately, while the plaintiff had labeled its proceeding a "Simplified Action," Associate Judge Cotter determined it did not qualify under Rule 292 because the relief sought included injunctive and declaratory relief, placing it outside the ambit of the simplified action rules. Nonetheless, the motions were dismissed without prejudice to further motions with better evidence.

The renewed motion against Cogeco and the revised evidence

The plaintiff filed a fresh motion for a Norwich order specifically against Cogeco, submitting revised evidentiary materials. A supplementary law clerk affidavit, affirmed on November 10, 2025, addressed the hearsay deficiencies: the affiant confirmed she had received a copy of the movie from the plaintiff, reviewed it herself, identified it as a superhero film, and attached a screenshot of the credits displaying the copyright symbol and identifying Hellboy Productions, Inc. as the author, creator, and copyright owner. The revised affidavit also included copies of first and second notices sent to the Doe Defendants via Cogeco, along with a summary chart indexing each subscriber to its notice reference number and Cogeco's responses. A supplementary forensic affidavit from Nowak, affirmed November 7, 2025, confirmed that Maverickeye identified the ISP responsible for each IP address using a third-party service providing weekly updated IP address allocations.

The court's analysis on the renewed motion

Madam Justice Whyte Nowak, in her decision dated March 9, 2026 (reported as 2026 FC 317), analyzed whether the revised evidence satisfied the three-element Norwich order test. On the first element — a bona fide claim — she found the plaintiff's revised evidence met the standard of providing "some evidence" showing a legitimate or plausible basis for the copyright infringement claim, which is less demanding than a prima facie standard. The credits displayed the copyright symbol and claimed authorship and ownership for the plaintiff, supporting both copyright subsistence and ownership. She also rejected the plaintiff's attempts to relitigate Associate Judge Cotter's earlier legal conclusions regarding the section 34.1 presumptions and the simplified action classification, characterizing these arguments as a collateral attack or disguised appeal. On the second element, the revised forensic affidavit and summary chart were sufficient to link the IP addresses to Cogeco as the appropriate ISP, and the order included safeguards limiting use of disclosed information and requiring confidentiality. On the third element — the balancing of public interests — the Court weighed the plaintiff's legitimate interest in enforcing its copyright against the privacy concerns of subscribers and found disclosure was justified, particularly since the Doe Defendants had already received two notices warning of potential disclosure.

The ruling and outcome

The Court granted the plaintiff's renewed motion for a Norwich order against Cogeco. Cogeco was ordered to disclose, within 30 days, the names and addresses of its subscribers associated with the IP addresses listed in the order's schedule (Doe Defendants #367 to #438). The disclosed information was to remain confidential and could only be used in connection with the claims in the proceeding. A copy of the Court order was required to accompany any correspondence sent with the Statement of Claim to identified subscribers. Correspondence to each subscriber, in the form attached as Schedule 2 to the order, was to be provided with the service of the Statement of Claim; that correspondence advised, in both English and French, that no court had yet determined liability for copyright infringement or damages. Cogeco's reasonable costs for discerning subscriber identities were recoverable, either in an amount agreed between the parties or, if so entitled, in an amount to be determined in a subsequent hearing. There were no costs awarded on the order itself. The motion was thus granted in favour of Hellboy Productions, Inc., although no specific monetary amount was awarded or granted at this stage, as the proceeding concerns the identification of alleged infringers rather than the adjudication of damages.