Levis Strauss & Co. v. Era Clothing Inc.
T-1096-98
Evans J.
23/7/99
12 pp.
Filing of confidential material-In context of trade mark infringement action, appeal from confidentiality order made by Prothonotary on motion by defendant under Federal Court Rules, 1998, r. 151 with respect to documents (containing confidential commercial information) included in defendant's affidavit of documents-Plaintiff objected to order on grounds it applied only to documents defendant had included in its motion record; unilateral in nature: did not apply to any of plaintiff's material; contrary to form of confidentiality order usually issued by Court-Prothonotary issued "usual" confidentiality order in terms of draft order submitted by plaintiff-Defendant arguing effect of plain words of r. 151(2) that material to be filed with Court may not be made subject of confidentiality order until after Court satisfied that claim for confidentiality outweighing generally prevailing public interest in openness of court proceedings-Argued would be contrary to plain meaning of r. 151(2) for order to be made, as here, prospective in nature and permitting parties, merely on say-so, to claim confidentiality for any material, whether to be filed or not, subject only to any challenge to claim that another party may subsequently bring before Court-Also argued consent of parties cannot confer jurisdiction on Court to make order contrary to r. 151(2)-Plaintiff focussed argument on benefits of what has become conventional confidentiality order granted in Court, and practical difficulties likely to be occasioned by interpretation of r. 151 advanced by counsel for defendant-Appeal allowed-R. 151 applicable only to "material to be filed"-Order made without reference to specific documents, or classes of documents, cannot be said to have been made after Court has satisfied itself that it "should be treated as confidential notwithstanding public interest in open and accessible court proceedings"-Nor necessarily contrary to fundamental values underlying Rules to give effect to what would seem to be plain meaning of Rule-Concern for efficiency and expeditiousness properly informs current Rules and should always be considered in their interpretation and application-But, this ought not to be at expense of even more important principle that, in democratic society committed to rule of law, limitations on openness of courts and judicial process should be kept to absolute minimum-However, nothing to preclude provision in confidentiality order permitting party to seek at later date removal of document from order-Solution may be to discourage parties from applying for confidentiality order under r. 151 until ready to file with Court material for which order being sought-By this stage, opposing party should normally be in position to make informed decision as to whether to make challenge, and to make it-Court will then determine if claim for confidentiality has been made out on both subjective, objective grounds-To extent order under appeal applies to material other than that to be filed, r. 151, and interest in maintaining accessibility of court records, do not apply-Hence, no reason to require departure from past practice for material, so that conventional "umbrella" confidentiality orders may continue to be issued on bilateral basis, in same terms-Undertaking of confidentiality implied with respect to material disclosed in course of discovery, elsewhere during litigation process sufficient to authorize Court to issue confidentiality orders that cover material not included in r. 151-Appropriate occasion to invoke "gap" rule (r. 4)-Thus, practical effect of r. 151(2) may be to require party wishing to maintain confidentiality of particular material it intends to file to make second motion prior to filing-It will then have to satisfy Court as to confidentiality of material on both subjective, objective grounds-Preferable herein simply to set aside order, remit matter back to Prothonotary so parties can reconsider in light of present reasons terms of confidentiality order granted, any others for which they may wish to apply-Federal Court Rules, 1998, SOR/98-106, r. 151(2).