Library:
Sealing Order Refused
Published in the March 2007 issue of Litigation Notes - View Article
In litigation between Telesat Canada and Boeing Satellite Systems International Inc. the parties sought to have the Court file sealed to preserve the confidentiality of commercially sensitive information that it might contain. That information included the Statement of Claim in the action and affidavit materials, which included a copy of the contract between the parties. Boeing and Telesat argued that there is an obligation of confidentiality contained in the contract itself.
The Court reviewed the jurisprudence which has established that confidentiality orders may be granted to protect a party’s commercial interests, in limited circumstances, where there is a contractual obligation of confidentiality. In Sierra Club of Canada v.Canada (Minister of Finance), 2002 SCC (CanLII) the Supreme Court of Canada stated that a confidentiality order should only be granted when: (a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.
The Supreme Court went on to say that a confidentiality order involves an infringement on freedom of expression and that in order to qualify as an "important commercial interest", the interest in question cannot merely be specific to the party requesting the order, but must be one which can be expressed in terms of a public interest in confidentiality.
In this case the Court pointed out that although the Sierra Club case did not make it clear whether an applicant must establish irreparable harm to its interests as a basis for obtaining a confidentiality order, it was “…. apparent from the Court’s reasoning that at least significant potential harm must be demonstrated and the burden of proof is on the applicant to establish this”. The Globe & Mail, who had intervened in the proceedings, submitted that the media had no interest in seeing or reporting on the technical engineering data which might come before the Court, but that a significant commercial dispute between two public companies is a matter of public interest. The Court agreed that there was “…no cogent evidence before the Court to establish the likelihood of irreparable or serious harm resulting from public access to the Statement of Claim or to affidavit material that discloses the contract between the parties or discusses the nature of the dispute.” Consequently, the sealing order was refused, subject to the rights of the parties to remove the contract from the file before it was made public.
Boeing Satellite Systems Canada Inc.v. Telesat Canada, 2007 CanLII 7991