[2000] 4 F.C. 426
A-699-99
Atomic Energy of Canada Limited (Appellant)
v.
Sierra Club of Canada (Respondent)
and
The Minister of Finance of Canada, The Minister of Foreign Affairs of Canada, The Minister of International Trade of Canada and The Attorney General of Canada (Respondents)
Indexed as: Sierra Club of Canada v. Canada (Minister of Finance) (C.A.)
Court of Appeal, Robertson, Evans and Sharlow JJ.A. —Ottawa, March 28 and May 15, 2000.
Practice — Affidavits — Cross-appeal from order granting leave to file supplementary affidavit, additional documents describing environmental assessment undertaken under Chinese laws — Litigation seeking judicial review of federal government’s decision to provide financial assistance for sale, construction of nuclear reactors in China without subjecting project to environmental assessment in accordance with Canadian Environmental Assessment Act (CEAA), s. 5(1)(b) — Sierra Club seeking declaration construction in China subject to environmental assessment in accordance with Canadian legislation — Atomic Energy of Canada Limited (AECL), government respondents submitting either CEAA not applicable, or relying on statutory defences under ss. 8, 54 — Documents technical, voluminous — Cross-appeal dismissed — Documents relevant to AECL’s defence under s. 54(2)(b) exemption from processes otherwise required by Act where arrangements between countries that environmental assessment consistent with CEAA to be conducted — Sufficient to demonstrate relevance to any one issue — Documents also potentially relevant to exercise of Court’s discretion to refuse remedy (i.e. order quashing decision to grant financial assistance) — If defence established, purpose of CEAA met, wasteful to require another assessment — Discretionary remedies not granted if serve no useful purpose — Benefit to intervener of being able to file documents, assistance will provide to Court, outweighing any prejudice to applicant as result of delay.
Practice — Confidentiality Orders — Appeal from refusal to grant confidentiality order with respect to documents describing environmental assessment undertaken under Chinese laws — Documents allegedly containing commercially sensitive information — Prepared by or with assistance of Chinese — Litigation seeking judicial review of federal government’s decision to provide financial assistance for sale, construction of nuclear reactors in China without subjecting project to environmental assessment in accordance with Canadian Environmental Assessment Act — Appeal dismissed (Robertson J.A. dissenting) — Having considered nature of litigation, extent of public interest in openness of proceedings, Motions Judge not giving public interest factor undue weight even though confidentiality claimed for only three documents, and content highly technical — Openness, public participation in assessment process of fundamental importance in CEAA — Motions Judge attaching too much weight to “voluntariness” of AECL’s introduction of documents, but not vitiating decision because (1) in this case great weight attached to openness; (2) summaries may somewhat compensate for absence of originals; (3) claim for confidentiality based on fear of loss of business towards low end of confidential spectrum — Motions Judge not required to inspect documents before considering confidentiality request given volume, complexity, availability of summaries.
Judges and Courts — Open justice — Appeal from refusal to grant confidentiality order for documents describing environmental assessment undertaken under Chinese laws — Documents prepared by or with assistance of Chinese — Litigation seeking judicial review of federal government’s decision to provide financial assistance for sale, construction of nuclear reactors in China without subjecting project to environmental assessment in accordance with Canadian Environmental Assessment Act — Openness, public participation in assessment process of fundamental importance in Act — Although commercial interests of AECL directly implicated in outcome of litigation, focus of application alleged breach of statutory duty — Having considered nature of litigation, extent of public interest in openness of proceedings, Motions Judge not giving public interest factor undue weight.
This was an appeal from the Motions Judge’s refusal of Atomic Energy of Canada Limited (AECL) request to treat certain documents as confidential, and a cross-appeal from the order granting leave to file a supplementary affidavit and three additional documents referred to in affidavits that had already been filed, and providing that AECL could file an edited version of the documents, omitting sensitive information.
The litigation seeks judicial review of the federal government’s decision to provide financial assistance for the sale and construction of nuclear reactors in China without subjecting the project to an environmental assessment in accordance with Canadian Environmental Assessment Act (CEAA), paragraph 5(1)(b). Sierra Club seeks a declaration that ongoing construction in China is subject to an environmental assessment in accordance with the Canadian legislation. AECL and the government respondents submitted that the CEAA does not apply, or that if it does, there are statutory defences available under sections 8 and 54. Finally, they argued that even if the legislation was breached, the Court should not grant the relief sought because the Chinese authorities have undertaken an environmental assessment which is equivalent to that required under the federal legislation.
The documents in question were either prepared by Chinese authorities and are in Chinese, or by AECL with assistance from the Chinese participants in the project. They contain a mass of technical information describing the environmental assessment being undertaken by Chinese authorities under laws of the People’s Republic of China, and are said to contain commercially sensitive material. They are referred to and summarized in affidavits already filed. The Sierra Club contended that its right to cross-examine on these affidavits was rendered nugatory by the absence of the supporting documents to which they referred, and that the summary provided in the affidavits was insufficient for this purpose.
In deciding to admit the documents, the Motions Judge held that they were potentially relevant to the Court’s exercise of its discretion to refuse a remedy notwithstanding a violation of the CEAA. In refusing the confidentiality order, the Motions Judge considered the harm that AECL might suffer if it filed the documents without the protection of a confidentiality order, and AECL’s submission that it would not be able to mount a full answer and defence if it decided not to file them because a confidentiality order was refused. He weighed these considerations against the principle of open public access to court documents, particularly noting that the subject-matter of this litigation was important to the public interest and had generated considerable media attention.
Held (Robertson J.A. dissenting as to the appeal), the appeal and cross-appeal should be dismissed.
Per Evans J.A. (Sharlow J.A. concurring): (1) The documents are clearly relevant to the defence under paragraph 54(2)(b), which provides an exemption from the processes otherwise required by the Act if there is an arrangement between the Government of Canada and an organization in the country where the project is to be carried out that an environmental assessment of the project will be conducted in that country in accordance with an assessment process that is consistent with the requirements of the Act and is in effect in that country. Whether AECL will be able to establish this defence before the Motions Judge could not be determined at this stage, but it was sufficient for AECL, as it did, to demonstrate the potential relevance of the documents to one of the issues in dispute.
The documents are also potentially relevant to the exercise of the Court’s discretion to refuse a remedy, particularly the order to quash the decision to provide financial assistance and to order a halt to further payments under the contract. If an adequate environmental assessment has been conducted in China, the purpose of the Act will arguably have been met and it would be wasteful to require another assessment to be conducted under the CEAA. Discretionary remedies are not granted on an application for judicial review if they would serve no useful purpose, especially when to grant the relief requested would have serious adverse consequences for both the public and the private interests involved in this major project. Of course, for this argument to be given credence it will be necessary for AECL to demonstrate that the assessment conducted in China is broadly similar to that mandated under the CEAA so as to constitute an adequate alternative. The documents describing the environmental assessment carried out by Chinese authorities are said to be relevant to establishing this.
Relief for breach of the CEAA should not be refused because it would have no practical effect just because the project is outside Canada. The financing provided by the respondents may give the Canadian government sufficient leverage to persuade Chinese authorities to correct problems identified by CEAA assessment.
The benefit to the intervener of being granted leave to file these documents, and the assistance that they will provide to the Court outweigh any prejudice to the Sierra Club as a result of delay. The delays were not all attributable to the intervener and the respondents. Moreover, since dates have now been fixed for the hearing of the application, which the Sierra Club has stated that it will meet even if the additional documents are filed, it seems unlikely that the Sierra Club will be prejudiced by further delay as a result of the grant of leave to AECL to file them.
(2) Before granting a confidentiality order, the Court must consider what harm could be caused to the party seeking it if the documents are disclosed, as well as the public interest in the openness of the judicial process in the case. Openness and public participation in the assessment process are of fundamental importance in the CEAA. Moreover, although the commercial interests of AECL are directly implicated in the outcome of the litigation, the focus of the application is an alleged breach of statutory duty by the respondent Ministers. Thus, having considered the nature of the litigation and having assessed the extent of public interest in the openness of the proceedings, the Motions Judge did not give the public interest factor undue weight, even though confidentiality is claimed for only three documents, and their content is likely to be beyond the comprehension of all but a few.
The Motions Judge attached too much weight to the voluntariness of AECL’s introduction of the documents as a factor militating toward refusing to grant the confidentiality order. However, that error did not vitiate the ultimate conclusion because: (1) in this case great weight must be attached to the principle of openness to every aspect of the proceedings, including the documentary evidence; (2) the inclusion in the affidavits of a summary of the reports may somewhat compensate for the absence of the originals; and (3) if AECL submits an edited version of the documents with the commercially sensitive information expunged, the claim for confidentiality will rest largely on AECL’s fear of a loss of business if, in order to protect its interests it discloses parts of documents in breach of an undertaking given to the Chinese authorities. In the circumstances, such a claim would rank towards the low end of the confidentiality spectrum. The offer to AECL of an opportunity to file an edited version of the confidential documents was well within the Motions Judge’s discretion to fashion an order that balanced the competing interests. Protestations of unworkability were premature.
The Motions Judge was not required to inspect the documents before considering the request for confidentiality: the documents were voluminous, highly technical and not completely translated, and the Judge had summaries available to him.
Per Robertson J.A. (dissenting as to the appeal): The Motions Judge erred in refusing to grant the confidentiality order because: (1) it is not the nature of the litigation, the identities of the parties or the degree of media coverage which is relevant, but the nature of the evidence for which a protective order is sought; (2) without a confidentiality order, the moving party must choose between two unacceptable options: an “unfair trial” or “economic loss”; and (3) the analytical framework basing the granting of confidentiality orders largely on the subjective views of a motions judge, rather than on the application of objective criteria, is fundamentally flawed. Where an objective model is available it must be preferred. There is no reason why the principles applying to commercial or scientific information which was acquired on a confidential basis should not apply herein. The following is a more objective framework for regulating the issuance of confidentiality orders pertaining to commercial and scientific information by applying these criteria as conditions precedent to the issuance of a confidentiality order.
(1) The information for which a confidentiality order is sought must be of a confidential nature as opposed to facts which one would like to keep confidential. On the facts herein, this criterion was satisfied. The information which AECL wanted to keep confidential was of a commercial nature and of interest to its competitors. The claim of confidentiality had a sound footing; it was not one where a litigant is asking that essential facts be withheld from the public.
(2) The information for which confidentiality is sought must not already be in the public domain. The requirement that the information has always been treated as confidential extends to third parties who may have accumulated the information and provided the litigant with a copy for limited purposes. AECL and the Chinese authorities have always treated the exhibits in a confidential manner.
(3) The party seeking the confidentiality order must establish on a balance of probabilities that it would suffer irreparable harm by the disclosure of the information. It is sufficient if the moving party establishes irreparable harm on an objective basis. AECL will be exposed to irreparable financial harm if the confidential information in question is made public since it would provide AECL’s competitors with technical and financial information otherwise unavailable to them. There is also the potential for harm to AECL’s relations with its Chinese customers and other existing and potential customers and, in turn to AECL’s reputation. AECL’s ability to maintain the confidentiality of such material is important to its commercial success. This case adds a further dimension to the notion of irreparable harm in that the refusal to grant a confidentiality order harms not only the legitimate interests of AECL, but also those of a third party and non-litigant, the Chinese authorities.
(4) The information must be relevant to the legal issues raised in the pleadings. It must be determined whether the information is a necessary component of the moving party’s case. The critical issue herein is whether the confidential documents are necessary to AECL’s successful defence of the allegation of wrongdoing on the part of the government. The information in question was relevant to the legal issues at hand.
(5) The information must be necessary to the resolution of the legal issues raised by the parties. The moving party must establish that the granting of the confidentiality order is necessary and that there is no other effective way of introducing essential evidence. If there is no viable alternative means by which the information could be introduced without breaching confidences and exposing AECL to irreparable harm then the issuance of a protective order arises as a matter of necessity. The expungement of confidential information from the documents is not a viable option. The documents are voluminous and highly technical and without the cooperation and approval of the Chinese authorities, any attempt by AECL to edit out sensitive information would be an exercise in frustration. The evidence did not support the suggestion that AECL could file an edited version in breach of its undertaking to the Chinese authorities, and it would be improper for the Court to decide this case on that basis. Nor was it established that the production of summaries of the confidential documents was an effective and alternative means by which AECL can introduce them into evidence without the benefit of a protective order. AECL will be denied the right to offer a full defence if such an order does not issue.
(6) The granting of a confidentiality order must not unduly prejudice the opposing party. This criterion is of no consequence so long as the confidentiality order permits the opposing party and its expert witnesses access to the confidential information, subject to the customary undertaking not to disclose the information to others. To the extent that it has full access to all of the appellant’s evidence, Sierra Club cannot be prejudiced by the issuance of a confidentiality order.
(7) The public interest in open court proceedings must not override the private interests of the party seeking the confidentiality order. The Motions Judge appears to have equated public interest in open court proceedings with the fact that the underlying litigation involves an issue of public importance. Sierra Club built upon the Motions Judge’s reasoning by asserting that the public interest in open court proceedings is to be equated with the level of interest expressed by Canadians in a public law proceeding. The risk of harm to AECL was determined under the third and sixth criteria. Thus it remained to be determined whether the circumstances support subordinating the principle of a fair trial to the principle of open justice. To answer that question, one must return to the purposes underscoring the principle of open justice, including the right of the public to have access to the truth. At this point the nature of the evidence for which a confidentiality order is sought becomes relevant. Neither the search for the truth in this case nor the nature of the debate is affected by the granting of a confidentiality order. There is no legal basis on which to hold that on the facts of this case the public interest in open proceedings overrides the risk of harm to which AECL would be exposed if a confidentiality order does not issue. The confidentiality order would not undermine the two primary objectives underscoring the principle of open justice: truth and the rule of law.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 2(b).
Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 5(1)(b), 8, 54.
Federal Court Rules, 1998, SOR/98-106, rr. 68(1), 151, 152, 306, 307, 312.
Manganese-based Fuel Additives Act, S.C. 1997, c. 11.
Patented Medicines (Notice of Compliance) Regulations, SOR/93-133.
Projects Outside Canada Environmental Assessment Regulations, SOR/96-491.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Southern Star Lighting Rod Co. v. Duvall, 64 Ga. 262 (1879); Scott v. Scott, [1913] A.C. 417 (H.L.); Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; (1989), 103 A.R. 321; 64 D.L.R. (4th) 577; [1990] 1 W.W.R. 577; 71 Alta. L.R. (2d) 273; 45 C.R.R. 1; 102 N.R. 321; Attorney General of Nova Scotia et al. v. MacIntyre, [1982] 1 S.C.R. 175; (1985), 49 N.S.R. (2d) 609; 132 D.L.R. (3d) 385; 96 A.P.R. 609; 65 C.C.C. (2d) 129; 26 C.R. (3d) 193; 40 N.R. 181; MDS Health Group Ltd. v. Canada (Attorney General) (1993), 15 O.R. (3d) 630; 20 C.P.C. (3d) 137 (Gen. Div.); McCreadie v. Rivard (1995), 43 C.P.C. (3d) 209 (Ont. Gen. Div.); AB Hassle v. Canada (Minister of National Health and Welfare) (1998), 83 C.P.R. (3d) 428; 161 F.T.R. 15; affd [2000] 3 F.C. 360 (C.A.); Ethyl Canada Inc. v. Canada (Attorney General) (1998), 17 C.P.C. (4th) 278; 54 O.T.C. 57 (Ont. Gen. Div.); Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; (1992), 88 D.L.R. (4th) 1; [1992] 2 W.W.R. 193; 84 Alta. L.R. (2d) 129; 3 Admin. L.R. (2d) 1; 7 C.E.L.R. (N.S.) 1; 132 N.R. 321; Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229 (1993), 102 D.L.R. (4th) 696; 10 C.E.L.R. (N.S.) 204; 61 F.T.R. 4 (T.D.); David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (1994), 58 C.P.R. (3d) 209; 176 N.R. 48 (C.A.); Attorney General of Nova Scotia et al. v. MacIntyre, [1982] 1 S.C.R. 175; (1985), 49 N.S.R. (2d) 609; 132 D.L.R. (3d) 385; 96 A.P.R. 609; 65 C.C.C. (2d) 129; 26 C.R. (3d) 193; 40 N.R. 181; Fogal et al. v. Canada et al. (1999), 161 F.T.R. 121 (F.C.T.D.).
REFERRED TO:
Solosky v. The Queen, [1980] 1 S.C.R. 821; (1979), 105 D.L.R. (3d) 745; 50 C.C.C. (2d) 495; 16 C.R. (3d) 294; 30 N.R. 380.
AUTHORS CITED
Miller, Arthur R. “Confidentiality, Protective Orders, and Public Access to the Courts” (1991-92), 105 Harv. Law Rev. 427.
APPEAL from the Motions Judge’s refusal of AECL’s request to treat certain documents as confidential, and CROSS-APPEAL from the order granting leave to file a supplementary affidavit and an edited version omitting sensitive information from three additional documents referred to in affidavits that had already been filed (Sierra Club of Canada v. Canada (Minister of Finance), [2000] 2 F.C. 400 (T.D.)). Appeal (Robertson J.A. dissenting as to the appeal) and cross-appeal dismissed.
APPEARANCES:
J. Brett G. Ledger and Peter J. Chapin for appellant.
Timothy J. Howard for respondent Sierra Club of Canada.
J. Sanderson Graham for respondents the Minister of Finance of Canada, the Minister of Foreign Affairs of Canada, the Minister of International Trade of Canada, and the Attorney General of Canada.
SOLICITORS OF RECORD:
Osler, Hoskin & Harcourt LLP, Toronto, for appellant.
Sierra Legal Defence Fund, Vancouver, for respondent Sierra Club of Canada.
Deputy Attorney General of Canada for respondents the Minister of Finance of Canada, the Minister of Foreign Affairs of Canada, the Minister of International Trade of Canada, and the Attorney General of Canada.
The following are the reasons for judgment rendered in English by
[1] Robertson J.A. (dissenting): The principle of open justice recognizes the basic right of the public to an open court. That principle includes a corollary right of access to court documents and the right of the press to publish what transpires in the courtroom by limiting the ability of litigants to pursue in camera proceedings. The principle of open justice constitutes a cornerstone of our democratic and legal system and one which long predates the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. The main appeal brings into issue fundamental questions relating to the basis on which “confidentiality” or “protective” orders should issue—orders which on their face conflict with the values underscoring our commitment to the principle of open justice.
[2] On the facts of this case, my colleagues have concluded that the Motions Judge [[2000] 2 F.C. 400 (T.D.)] did not err in refusing to grant the confidentiality order sought. As I understand it, their position consists of three threads. First, the weight to be assigned to the principle of open justice varies with the context. Second, it is necessary to determine the degree of “public interest in the openness of the judicial process” by reference to the public importance of the case. In turn, public importance is to be inferred by examining the cumulative effect of: (1) the nature of the litigation; (2) the nature of the evidence; (3) the extent of media coverage; and (4) the identity of the litigants. Third, one must weigh a party’s interest in a confidentiality order against the degree of public importance of the case and determine which of the two is to prevail. With respect, I disagree with both the result and the analytical framework offered for three reasons.
[3] First, while the principle of open justice is concerned with the preservation of “the public interest in open court proceedings”, that objective should not be equated with, nor made dependent on, the fact that this is a case involving an allegation of government wrongdoing made by a litigant with public interest standing. Nor should the public importance of a case be measured, for example, by reference to the level of media coverage which admittedly is extensive in this case. In my opinion, it is not the nature of the litigation, the identities of the parties or the degree of media coverage which is of relevance, but rather the nature of the evidence for which a protective order is sought. Second, without a confidentiality order, the moving party in this case (the appellant) must choose between two unacceptable options. If the confidential information is offered into evidence, the appellant will suffer irreparable financial harm. If, on the other hand, it elects not to file the evidence, it will be denied the right to a “fair trial” in the sense that it is impossible to mount a full defence to the allegations of government wrongdoing. In short, the absence of a confidentiality order forces the appellant to choose between an “unfair trial” or “economic loss”. This is not to suggest that the private interests of a party will always trump the principle of open justice. As will be explained, this is not an appropriate case in which to permit the latter to override the former. Finally, it is my respectful opinion that the analytical framework adopted by the majority with respect to determining whether confidentiality orders should issue is fundamentally flawed. What is being offered is a framework in which the granting of confidentiality orders is based largely on the subjective views of a motions judge, rather than on the application of objective criteria. This issue is dealt with more fully commencing at paragraph 35 of my reasons. My analysis begins with a brief recitation of the facts.
[4] The respondent, Sierra Club of Canada, is a well-known environmental organization with public interest standing in the underlying litigation. It seeks judicial review of the federal government’s decision to provide financial assistance in the form of a $1.5 billion guaranteed loan tied to the sale and construction of two CANDU nuclear reactors to China by the appellant, Atomic Energy of Canada Limited. Although joined as an intervener, Atomic Energy was granted party status. Sierra Club maintains that the authorization of financial assistance effected through the Export Development Corporation by the three respondent Ministers triggers the application of paragraph 5(1)(b) of the Canadian Environmental Assessment Act [S.C. 1992, c. 37]. That provision requires that an environmental assessment be undertaken before a “federal authority” provides financial assistance in regard to construction projects as defined in that legislation. Sierra Club takes the position that the responsible authorities have breached this statutory duty and, that it is entitled to various forms of relief including a declaration that ongoing construction in China is subject to an environmental assessment undertaken in accordance with the Canadian legislation.
[5] On the facts of the present case, the appellant and the government respondents take the position that the Canadian Environmental Assessment Act has no application. Alternatively, they maintain that if that legislation does apply there are statutory defences available under sections 8 and 54 of that Act. Specifically, it is argued that subsection 54(2) recognizes the validity of an environmental assessment carried out by a foreign authority provided that it is consistent with the requirements of the Canadian legislation. Finally, the appellant and government respondents argue that even if Sierra Club is successful in establishing that the legislation has been breached, the Court in the exercise of its discretion should not grant the remedial relief sought. They base this argument on the fact that the Chinese authorities had undertaken an environmental assessment which is the equivalent of that required under the federal legislation and since the granting of prerogative relief is discretionary in nature that discretion should be exercised in favour of Atomic Energy and the respondent Ministers. (For the most part, the government respondents adopted the submissions of the appellant (intervener) and thus I will refer only to the position of the latter in these reasons.)
[6] This appeal is tied to only one of the 12 interlocutory proceedings initiated by either Sierra Club or Atomic Energy. It stems from a motion by the latter to introduce a supplementary affidavit together with three exhibits referred to in that document. Those exhibits pertain to an environmental assessment carried out by Chinese authorities in anticipation of the construction of the nuclear reactors and were provided to Atomic Energy on a confidential basis. The Chinese authorities granted Atomic Energy permission to use the information in order to make full defence to the allegation of wrongdoing levelled by Sierra Club so long as its confidentiality was preserved. Atomic Energy moved to have the supplementary affidavit introduced together with the three exhibits and for an order of confidentiality. The Motions Judge granted the request to file the affidavit and exhibits under rule 312 of the Federal Court Rules, 1998 [SOR/98-106], but denied the request for a confidentiality order brought under rule 151. The Motions Judge, however, did make an order enabling Atomic Energy to file edited versions of the confidential materials if it so wished. Atomic Energy appeals the refusal to grant the confidentiality order. Sierra Club cross-appeals the decision to allow Atomic Energy to file the supplementary affidavit and exhibits, in either edited or unedited form.
[7] My colleagues have concluded that the cross-appeal should be dismissed. I agree. Thus, the only question is whether the Motions Judge erred in refusing to grant the confidentiality order sought by Atomic Energy. In addressing this issue, my colleagues have adopted a contextual approach, one which requires consideration of several factors followed by an assignment of the “proper” weight to be given to each. In other words, they look upon the decision whether to grant a confidentiality order under rule 151 as one involving the exercise of judicial discretion as is required, for example, when a litigant is seeking an extension of time in which to file documents. Moreover, at paragraph 89 of their reasons, my colleagues maintain that the degree of public importance in any given case is a relevant factor “in the discretionary exercise of weighing the claims for confidentiality against the principle of openness in the administration of justice.” They also conclude that the Motions Judge assigned proper weight to this factor and, although he erred in another respect, that error did not vitiate his decision to deny the confidentiality order sought.
[8] In my respectful view, the analytical framework adopted by my colleagues is impracticable. What is proposed is a contextual framework empowering a motions judge to exercise his or her subjective appreciation as to the relevancy and weight of certain factors. The law, however, has always been vigilant in seeking out and adopting objective frameworks of analysis, if only for the purpose of combatting the perception that justice is a relative concept driven more by the ideological bent of the decision-maker than the need for consistency and certainty in the law. This very point was made by Viscount Haldane in Scott v. Scott, [1913] A.C. 417 (H.L.), which remains a leading authority on the application of the principle of open justice. At page 438, Viscount Haldane stated: “The question [of confidentiality] is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient”. This is not to suggest that flexibility in the law is not a desirable attribute. But flexibility should never be confused with fluidity. The classic formulation of this view was eloquently stated in Southern Star Lighting Rod Co. v. Duvall, 64 Ga. 262 (1879), at page 268:
For the sake of fixedness and uniformity, law must be treated as a solid, not as a fluid. It must have, and always retain, a certain degree of hardness, to keep its outlines firm and constant. Water changes shape with every vessel into which it is poured; and a liquid law would vary with the mental conformation of judges, and become a synonym for vagueness and instability.
[9] Admittedly, there are instances where a contextual approach is required as a matter of practical necessity. But where an objective model is available it must be preferred. In the reasons that follow, I offer what I regard as a more objective framework for regulating the issuance of confidentiality orders pertaining to commercial and scientific information.
[10] I begin this portion of my analysis by turning briefly to the legal rationale underscoring our commitment to the principle of open justice. In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, the Supreme Court acknowledged two of the purposes underlying that principle. The first is tied to the belief that open proceedings foster the search for “truth” in both civil and criminal cases. The second is that the principle reflects the “importance of the public scrutiny of the courts”. Thus, for example, it is said that as freedom of the press is of fundamental significance to a democratic society “[t]he press must be free to comment upon court proceedings to ensure that the courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny” (per Cory J. at page 1339). In that same decision Wilson J. commented at page 1361 that the public interest in open trials is the ability of the press, and hence the public, to have complete reports of what takes place in the courtroom which is said to be rooted in the need: (1) to maintain an effective evidentiary process; (2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by society; (3) to promote the sense that courts operate with integrity and dispense justice; and (4) to provide the community with an opportunity to learn how the justice system operates and how the law being applied daily affects them. The same reasoning applies equally to judicial review proceedings.
[11] No one can disagree with the understanding that the principle of open justice is a reflection of the basic democratic value of accountability in the exercise of judicial power. That being said, the notion of judicial accountability is much more than a ritualistic incantation to be invoked, for example, whenever judicial opinions are perceived as conflicting with public opinion or the notion of parliamentary sovereignty. Rather it is a principle of fundamental significance to the preservation of the rule of law. That rule provides that no one person is above the law and, therefore, all who come before it are entitled to equal treatment. Equality can only be assured through the application of the principle of open justice. But it has long been accepted that that principle must, on occasion, yield to a paramount principle; namely that at the end of the day “justice” is secured. This was the position forcefully advocated by Viscount Haldane L.C. in Scott v. Scott, supra, of which more is said below. Moreover, justice as an overarching principle is not a pious platitude but rather a reflection of the understanding that rules or principles should rarely be cast as absolutes. After all, the court process is merely a means to an end. This is why the identification of acceptable exceptions to principles or rules has always presented itself as the true challenge in formulating the law. Unfortunately, and with great respect, the jurisprudence of the Supreme Court provides us with little guidance. It simply tells us that the exceptions will arise in those cases “where there is … a need to protect social values of superordinate importance”: see Attorney General of Nova Scotia et al. v. MacIntyre, [1982] 1 S.C.R. 175, at pages 186-187.
[12] There can be no one analytical framework for the granting of confidentiality or protective orders. For example, in the area of family law the issuance of confidentiality orders is more often than not driven by the need to protect the privacy interests of innocent parties—children. Obviously this overarching consideration has no application to the present case and so it is that the law governing the issuance of confidentiality orders must respond to a plethora of factual patterns. However, the task of isolating an analytical framework is greatly simplified in the present case once it is recognized that the present law already provides an exception for confidential information which qualifies as a “trade secret”. According to established principles, a trade secret constitutes a species of property which can be protected by way of injunction. For this reason, the law will not permit disclosure of a trade secret during the course of a trial when to do so would have the effect of destroying the owner’s proprietary right and exposing him or her to irreparable harm in the form of a financial loss. This explains why the jurisprudence holds that a confidentiality order must issue where “the subject matter of the action would be destroyed” if the doors of the courtroom were to remain open.
[13] While the present case does not involve a trade secret, I cannot think of any reason why similar treatment cannot be extended to cases involving commercial or scientific information which can be reasonably viewed as having been acquired or accumulated on a confidential basis. More often than not such information is of value to a party’s competitors. The present case falls within this narrow class. In my opinion the following criteria can be reasonably viewed as conditions precedent to the issuance of a confidentiality order in cases where a party is seeking to prevent the disclosure of information: (1) the information is of a confidential nature as opposed to facts which one would like to keep confidential; (2) the information for which confidentiality is sought is not already in the public domain; (3) on a balance of probabilities the party seeking the confidentiality order would suffer irreparable harm if the information were made public; (4) the information is relevant to the legal issues raised in the case; (5) correlatively, the information is “necessary” to the resolution of those issues; (6) the granting of a confidentiality order does not unduly prejudice the opposing party; and (7) the public interest in open court proceedings does not override the private interests of the party seeking the confidentiality order. The onus in establishing that criteria one to six are met is on the party seeking the confidentiality order. Under the seventh criterion, it is for the opposing party to show that a prima facie right to a protective order has been overtaken by the need to preserve the openness of the court proceedings. In addressing these criteria one must bear in mind two of the threads woven into the fabric of the principle of open justice: the search for truth and the preservation of the rule of law. As stated at the outset, I do not believe that the perceived degree of public importance of a case is a relevant consideration.
[14] The first criterion distinguishes between information which can reasonably be regarded as having been accumulated or acquired on the basis that it would remain confidential as opposed to factual information which a litigant wishes to keep confidential. The quintessential example of this distinction is found in Scott v. Scott, supra. In that case Mrs. Scott filed for divorce on the ground that the marriage to Mr. Scott was a nullity by reason of his impotence, it being established that she remained a virgin. The parties were able to persuade the divorce court to hear the petition in camera. Ultimately, a decree absolute issued but Mrs. Scott obtained and distributed a copy of the transcript of the proceedings to other persons after learning that Mr. Scott had allegedly been making unflattering comments about her sanity. Initially, the issue was whether the former Mrs. Scott should be held in contempt of court for disclosing what had transpired at the divorce hearing. The House of Lords answered the question in the negative on the basis that the divorce court was without jurisdiction to hear a nullity suit in camera and in “the interest of public decency”. The point is simply this. There is a difference between information which is accumulated with a reasonable expectation of it being kept confidential and facts which a litigant would like to keep confidential by having the courtroom doors closed.
[15] While the Scott case is a family law case, there are two Ontario decisions dealing with the issuance of a protective order in which the litigants were commercial parties. In both cases confidentiality was being sought because of the potential for financial loss flowing from disclosure of the facts surrounding the lawsuit. In MDS Health Group Ltd. v. Canada (Attorney General) (1993), 15 O.R. (3d) 630 (Gen. Div.), the corporate plaintiff, a publicly-traded company, argued that if the facts underlying its lawsuit became public it would lose the confidence of its customers and, therefore, there would be serious financial consequences for its shareholders. The plaintiff was unsuccessful in obtaining either of its requests: an order allowing the proposed action to proceed under a pseudonym and the sealing of the court record to keep confidential the fact of the commencement of the action, as well as to ensure that no publication would be made of any document filed in the action. In effect, MDS, supra, is an example of a case where the risk of financial loss did not arise from the disclosure of confidential information but rather from the factual matrix surrounding the lawsuit. The same can be said of the decision in McCreadie v. Rivard (1995), 43 C.P.C. (3d) 209 (Ont. Gen. Div.). In that case, a protective order was refused in circumstances where some of the parties might have suffered financial loss because of the publicity surrounding the lawsuit.
[16] On the facts of this case, the first criterion is easily satisfied. The information which Atomic Energy wishes to keep confidential is of a commercial nature and of interest to its competitors (see discussion infra dealing with the issue of irreparable harm). From the outset the information contained within the three exhibits would be recognized as being of a confidential nature. This is a case where a claim of confidentiality has a sound footing; it is not one where a litigant is asking that essential facts or the truth be withheld from the public.
[17] The second criterion is whether the information to be given protective status has always been treated as such. This requirement must extend not only to the party seeking the confidentiality order but also to third parties who may have accumulated the information and who have provided the litigant with a copy for limited purposes. The rationale underlying this criterion is self-evident. No one may claim confidentiality for information which is already in the public domain. In circumstances where the person accumulating the information loses the right to control its dissemination, either because of a conscious decision or through inadvertence, the right of a litigant to a confidentiality order is also lost. On the facts of the present case, it is common ground that Atomic Energy and the Chinese authorities have always treated the exhibits in a confidential manner. For this reason I need not review the elaborate measures undertaken by Atomic Energy to preserve the confidentiality of the information provided by the Chinese authorities.
[18] The third criterion imposes an obligation on the party seeking the confidentiality order to establish on a balance of probabilities that its proprietary or commercial interests could be harmed by the disclosure of the information. In effect, this criterion involves the application of the irreparable harm test universally applied in injunctive proceedings, including those involving trade secrets. At this juncture, however, I must acknowledge that the jurisprudence emanating from the Trial Division of this Court includes both a subjective and an objective test: see AB Hassle v. Canada (Minister of National Health and Welfare) (1998), 83 C.P.R. (3d) 428 (F.C.T.D.); affd on other grounds [2000] 3 F.C. 360 (C.A.). The subjective test requires the party seeking the confidentiality order to show that it believes that the information which it seeks to protect is confidential and would be harmful to its interests if disclosed. Quite frankly, I am unable to appreciate the rationale underscoring the need for a subjective component of the irreparable harm test. If the moving party is able to establish irreparable harm on an objective basis, which it must, why would the law also impose an additional subjective component? In my respectful view, the objective test is sufficient.
[19] It bears repeating that the notion of irreparable harm does not apply to cases where a litigant is simply exposed to the risk of financial harm as a result of the factual matrix surrounding the lawsuit becoming public. The distinction outlined earlier between information of a confidential nature and facts which litigants would like to keep confidential is not to be overtaken by the plea of economic loss: see MDS Health Group Ltd. v. Canada (Attorney General), supra, and McCreadie v. Rivard, supra.
[20] Once again it is common ground that Atomic Energy will be exposed to irreparable financial harm if the confidential information in question is made public since it would provide Atomic Energy’s competitors with technical and financial information otherwise unavailable to them. It contains site-specific plant layout and numerous matters relating to the efficiency of the Canadian reactors, e.g. fuel consumption and operational features, in short, the type of information which is of interest to Atomic Energy’s competitors. There is also the potential for harm to Atomic Energy’s relations with its Chinese customers and other existing and potential customers and, in turn, to Atomic Energy’s reputation. This flows from the fact that Atomic Energy requires that its customers provide it with the type of confidential information contained in the documents in issue. In return Atomic Energy gives an undertaking to maintain confidentiality. Atomic Energy’s ability to maintain the confidentiality of such material is understandably important to its commercial success.
[21] This case adds a further dimension to the notion of irreparable harm in that the refusal to grant a confidentiality order harms not only the legitimate interests of Atomic Energy but also those of a third party and non-litigant, the Chinese authorities. Two of the three documents for which a confidentiality order is sought involve environmental impact studies prepared by the Chinese authorities. One is a comprehensive, detailed and site-specific analysis of the project. The other relates to construction and design aspects of the nuclear reactors. Both documents were prepared as part of an ongoing environmental assessment of the project and constitute conditions precedent to the issuance of a licence to operate a nuclear power plant under Chinese law. The third document, consisting of 18 volumes includes, for example, the site-specific plant layout and was prepared jointly by Atomic Energy and the Chinese authorities. Because of a confidentiality order issued by this Court there are other facts which I cannot reproduce in these reasons for judgment. Suffice it to say that it does not take a great deal of imagination to appreciate why any government would balk at the prospect of revealing the site-plans for its nuclear installations.
[22] The fourth criterion is whether the information for which a confidentiality order is sought is relevant to the legal issues raised in the pleadings. If not, the application for a confidentiality order should be summarily dismissed. Conversely, however, the fact that confidential information is relevant to the legal issues to be addressed in the judicial review application is not a sufficient ground for granting the confidentiality order. It remains to be determined whether the information is a necessary component of the moving party’s case. In the present instance, it is common ground that the confidential information is relevant to the issues that will be placed before a motions judge. The critical issue is whether the confidential documents are necessary to Atomic Energy’s successful defence of the allegation of wrongdoing on the part of the government. Before turning to that question it must be emphasized that in some cases the relevancy of the information for which a confidentiality order is sought will be in issue.
[23] The issue of relevancy is best exemplified by Ethyl Canada Inc. v. Canada (Attorney General) (1998), 17 C.P.C. (4th) 278 (Ont. Gen. Div.), a case cited by my colleagues in support of the proposition that the level of public interest in a case is a relevant consideration when deciding whether to issue a confidentiality order. The facts of that case are relatively straightforward. The plaintiff, Ethyl Canada Ltd., sought a declaration that the Manganese-based Fuel Additives Act, S.C. 1997, c. 11, was ultra vires the federal government under the distribution of powers. That legislation bans the importation and interprovincial transportation of a certain gasoline additive used to increase octane levels. The Canadian Vehicle Manufacturers’ Association was granted party intervener status and permitted to introduce evidence and cross-examine with respect to the negative impact of the additive on vehicle emission control systems and vehicle performance. Several car manufacturers, including Honda and General Motors, had provided confidential testing information to the intervener which revealed the negative impact of the additive on the manufacturers’ cars, information which they did not want to make public. The intervener was willing to provide unedited versions to Ethyl Canada and the Court, provided the documents made available to the public were edited so as not to reveal the identity of specific makes of vehicles adversely affected by the additive. The plaintiff moved for full disclosure, the intervener brought a cross-motion for a partial-sealing order. The motion to compel disclosure was allowed, the cross-motion was dismissed.
[24] While doubting that disclosure would result in harm to the car manufacturers, the Motions Judge in Ethyl Canada, supra, concluded that even if harm were a possibility it was not so great as to outweigh the public interest in disclosure for two reasons. First, the Motions Judge doubted that an interested citizen could appreciate the significance of the data and its implications. Second, in holding that public interest in full disclosure outweighed the private interest in confidentiality she alluded to the magnifying effect of the fact that the litigation involved “an important public law case”. In my respectful view, however, a more fundamental issue was whether the affidavit evidence from the car manufacturers was of any relevance to the constitutional issue at hand. Whether or not the federal government possesses the competence to adopt the legislation in question is not, as far as I am aware, dependent on whether the gasoline additive is or is not harmful to automobile engines. The wisdom of Parliament in passing the legislation is not a justiciable matter, only its competence to do so.
[25] Returning to the facts of this case, it is not open to question that the information in question is relevant to the legal issues at hand. The question is whether it is necessary to the resolution of the legal issues raised by the parties. The significance of the fifth criterion was affirmed by Viscount Haldane L.C. in Scott v. Scott, supra, at pages 437-439:
There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.
But unless it be strictly necessary for the attainment of justice, there can be no power in the Court to hear in camera either a matrimonial cause or any other where there is contest between parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to shew that the evidence can be effectively brought before the Court in no other fashion…. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors.
If the evidence to be given is of such a character that it would be impracticable to force an unwilling witness to give it in public, the case may come within the exception to the principle that in these proceedings, and not the less because they involve an adjudication on status as distinguished from mere private right, a public hearing must be insisted on in accordance with the rules which govern the general procedure in English Courts of justice. A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.
[26] In summary, Viscount Haldane posits that the general principle of openness in court proceedings cannot be displaced unless it is shown that justice can be achieved only by closing the courtroom doors. Thus, the moving party must establish that the granting of the confidentiality order is necessary in the sense that there is no other effective way of introducing essential evidence. It cannot be doubted that the information for which Atomic Energy seeks a confidentiality order is essential to the defence of its case. Assuming that the Canadian Environmental Assessment Act is triggered by the loan transaction, Atomic Energy is entitled to raise subsection 54(2) of that legislation which recognizes the validity of an environmental assessment carried out by foreign authorities, provided that the assessment meets the Canadian requirements: see also Projects Outside Canada Environmental Assessment Regulations, SOR/96-491.
[27] Accepting that the confidential information contained within the three exhibits attached to the supplementary affidavit is essential to Atomic Energy’s defence, it remains to be considered whether there are alternative means by which that information may be introduced without breaching confidences and exposing Atomic Energy to irreparable harm. If no viable option exists then the issuance of a protective order arises as a matter of necessity. Two possibilities have been raised in this case. The first was raised by the Motions Judge and involves the expungement of confidential information from the documents in issue and the filing of edited versions. The second is raised by my colleagues who suggest that the non- confidential summaries of the reports (the confidential documents) may go a long way to compensate for the absence of the reports themselves if Atomic Energy decides not to place them into evidence without a confidentiality order. If either option constitutes an effective means by which the confidential information may be introduced into evidence then the refusal to grant the protective order sought by Atomic Energy is justified.
[28] With respect to the first option, it is my respectful opinion that the expungement of confidential information from the documents in question is not a viable option. Putting aside the fact that both parties are opposed to this remedial option and that it was not raised by either party before the Motions Judge, there are other valid grounds for rejecting this solution. There is an untested assumption that confidential information and information relating to the environmental aspects of the construction of the nuclear reactors are mutually exclusive. This is not necessarily so. Admittedly, the only way of testing the assumption is to examine the documents for which a confidentiality order is being sought. This the Motions Judge did not do. Whether that omission is of itself an error of law is not a matter with which I need be concerned. The reality is that the documents in question are voluminous and highly technical. Without the cooperation and approval of the Chinese authorities, any attempt by Atomic Energy to edit out sensitive information would be an exercise in frustration. Whether or not the Chinese authorities would be prepared to allow the filing of edited versions of the documents is a matter which Atomic Energy has never had the opportunity to address because of the way in which the expungement issue was raised below. In any event, having regard to the litigation history of this case, I doubt that Sierra Club would be willing to accept blindly all editorial deletions that might be proposed by Atomic Energy even if the Chinese authorities were prepared to participate in such an exercise. Once again, however, this is assuming that sensitive or confidential information is irrelevant to the environmental assessment issues to be addressed. Above all, it is the responsibility of a motions judge to ensure that the option of editing sensitive documents is a viable one. The facts of this case do not support the imposition of this option.
[29] The suggestion made by my colleagues, at paragraph 104 of their reasons, that the decision of Atomic Energy to file an edited version in breach of its undertaking to the Chinese authorities will rest largely on Atomic Energy’s fear of a loss of business, leaves one with the impression that that fear is either unsubstantiated or, alternatively, that a breach of the undertaking remains as a possibility. The evidence is to the contrary and in any event it would be improper for this Court to decide this case on the basis that it was open to Atomic Energy to file the confidential documents in breach of its undertaking to the Chinese authorities.
[30] I turn now to the remaining option. Atomic Energy would have no need for a confidentiality order if it were able to rest its defence on the summaries which it prepared of the documents for which the confidentiality order is being sought, as suggested by my colleagues at paragraph 103 of their reasons. I have two fundamental objections to this option. First, it was not raised before the Motions Judge. Second, if those summaries (found at pages 289 et seq of Appeal Book I) are deemed acceptable substitutes for the confidential documents and evidence of compliance by the Chinese with the Canadian environmental process, Sierra Club might as well abandon its judicial review application. I say this because the summaries consist of a series of statements cast as conclusions of that which would otherwise have to be proven. In other words, the summaries constitute self-serving evidence in support of Atomic Energy’s ultimate position that the environmental assessment carried out in China by Chinese authorities complies with the Canadian requirements. For example, at page 290 of Appeal Book I, the “Screening Report” reads in part:
In AECL’s opinion the attached environmental impact report meets, as a minimum, the requirements of a screening report under Section 18 of the Canadian Environmental Assessment Act. In summary:
…
d) the project will have no impact on the physical and cultural heritage, nor on the current use of lands and resources of any aboriginal peoples, as there are no aboriginal peoples living in the vicinity of the Qinshan site;
[31] In conclusion, it has not been established that either the process of editing the confidential documents or the production of summaries thereof are effective and alternative means by which Atomic Energy can introduce them into evidence without the benefit of a protective order. It follows that Atomic Energy will be denied the right to offer a full defence if such an order does not issue. Therefore, the necessity requirement outlined by Viscount Haldane in Scott v. Scott, supra, is satisfied.
[32] The sixth criterion asks whether the confidentiality order will result in the opposing party being unduly prejudiced by the granting of the confidentiality order. This criterion is of no consequence so long as the confidentiality order permits counsel for the opposing party and its expert witnesses access to the confidential information, subject to the customary undertaking not to disclose the information to others. This is the very type of order that Atomic Energy seeks in this case. For this reason Sierra Club cannot be prejudiced by the issuance of a confidentiality order, at least to the extent that it has full access to all of the appellant’s evidence. As a tactical matter, it is understandable that Sierra Club would vigorously oppose the granting of a confidentiality order to Atomic Energy.
[33] The seventh criterion is an overriding one and involves consideration of two competing factors. A motions judge must determine whether the public interest in open court proceedings overrides the private interests of the party seeking the confidentiality order. The Motions Judge referred to this issue at paragraphs 17, 23 and 31 [pages 413-419] of his reasons:
Before such an order can be made, I must be satisfied that the need for confidentiality is greater than the public interest in open and accessible court proceedings. The argument for open proceedings in this case is significant. This is a matter of considerable interest to a large number of Canadians. There has been a long-running public debate about Canada’s role as a vendor of nuclear technology, in which this application is but the latest skirmish. The issues are within the public domain and are not simply a matter of individual rights, though AECL’s business could potentially be affected by the result. All of this suggests that these proceedings should be open and public.
…
However, I am also of the view that in public law cases, the objective test has, or should have, a third component which is whether the public interest in disclosure exceeds the risk of harm to a party arising from disclosure.
…
Taking all of these into account, I am not satisfied that the need for confidentiality exceeds the public interest in open justice. The issue of Canada’s role as a vendor of nuclear technology is one of significant public interest, with animated positions being taken on both sides of the question. The burden of justifying a confidentiality order in such circumstances is very onerous. While the documents contain sensitive information, nothing has been shown to me which would suggest that it is the sensitive information which would be of interest to the Court. AECL has the option of expunging the sensitive material from the documents which it proposes to file.
[34] Collectively, the above passages support the understanding that in “public law cases” the Court must assess whether the public interest in disclosure exceeds the risk of harm to the party seeking confidentiality. As well, those passages leave the impression that the Motions Judge has equated the legal concept of “public interest in open court proceedings” with the fact that the issue as to Canada’s role as a vendor of nuclear technology is a matter of public interest. (Whether or not this is “a matter of considerable interest to a large number of Canadians”, as noted by the Motions Judge, is a matter on which I prefer to express no opinion.) In short, the Motions Judge appears to equate public interest in open court proceedings with the fact that the underlying litigation involves an issue of public importance. The respondent, Sierra Club, builds upon the Motions Judge’s reasoning by asserting that the public interest in open court proceedings is to be equated with the level of interest expressed by Canadians in a public law proceeding. This is confirmed by the excerpts from newspaper articles and transcripts of radio interviews attached as exhibits to the affidavit of Elizabeth May, filed with this Court following the release of the Motions Judge’s decision and prior to the hearing of this appeal. My colleagues have adopted a position which is closer to that of the Motions Judge than that advanced by Sierra Club.
[35] As noted at the outset and as I understand it, my colleagues’ position consists of three threads. First, the weight to be assigned to the principle of open justice varies with the context. Second, it is necessary to determine the degree of public importance of a case which is to be inferred by examining the cumulative effect of: (1) the nature of the litigation; (2) the nature of the evidence; (3) the extent of media coverage; and (4) the identity of the litigants. Third, one must weigh a party’s interest in a confidentiality order against the degree of public importance in the case and determine which prevails in the instant case: see in particular paragraphs 85, 90, 94 and 97 of the majority’s reasons.
[36] Applying the above factors, my colleagues have concluded that the public interest overrides the private interests of Atomic Energy. In short, the fact that the subject-matter of the litigation is alleged wrongdoing on the part of the government (a “public law case”), coupled with the fact that the opposing party is a litigant with public interest standing whose lawsuit has attracted significant media coverage, elevates this case to one of sufficient public importance. That is to say, it is one in which it can be inferred that the public interest in the proceedings overtakes the private interests of Atomic Energy. Respectfully, I cannot subscribe to this analytical framework.
[37] I cannot accept the legal proposition that the issuance of a confidentiality order is to be influenced by perceptions as to the “public importance” of a case. I am equally troubled by the legal proposition that it is possible to infer the degree of public interest in open proceedings through the factors identified. As best I can predict, the proposed analytical framework will necessarily tilt the balance in favour of public interest litigants (or the media) in virtually every case where a confidentiality order is sought. Moreover, the proposed framework is not restricted to the issuance of protective orders in the context of commercial or scientific information which is alleged to be of a confidential nature. It extends to all cases in which a confidentiality order is sought.
[38] Certainly, it is not the level of interest expressed by the public, through the media, in a particular case which is of relevance. The principle of open justice cannot be made dependent on what the media believes to be of public interest. After all, the media has its own interests to protect. Nor is the fact that this is a public law case, that is to say, a case in which one of the parties is the federal government, of any relevance. Any government, be it provincial or federal, is entitled to the same procedural and substantive safeguards as any private litigant. The rule of law demands as much. Correlatively, the fact that the applicant for judicial review is an environmental organization with public interest standing is equally irrelevant. The law cannot embrace a rule which elevates the standard of proof required of a party seeking a confidentiality order because the opposing party is committed to pursuing goals which it believes are in the public’s best interests and is better able to garner more media attention than others. To the extent that Ethyl Canada Inc. v. Canada (Attorney General), supra, and MDS Health Group Ltd. v. Canada (Attorney General), supra, stand for the proposition that the issuance of protective orders is dependent on the level of public interest in a case, I respectfully decline to apply those cases. That being said, this is not to suggest that those cases were wrongly decided or that in fact those two cases support that proposition. What I am submitting is that it is not the subject-matter of the underlying litigation which is of relevance but rather the nature of the evidence for which the protective order is sought. I return now to the scope and application of the seventh criterion, as I see it.
[39] As stated earlier, the seventh criterion requires a motions judge to decide whether the public interest in open proceedings overrides the private interests of the party seeking the confidentiality order. It must be remembered that the risk of harm to the party seeking the confidentiality order has already been determined under the third and sixth criteria. Under the third, it was established that Atomic Energy would suffer irreparable financial harm if the confidential information were made public. Under the sixth, it was established that the introduction of the confidential information is necessary in order for Atomic Energy to mount an available defence to the allegation of government wrongdoing. To reiterate what was said above, a refusal to grant Atomic Energy the confidentiality order it seeks will result in it being denied the right to present a full defence. Thus, it remains to be determined whether there are any circumstances in which the public interest in open proceedings should override the private interests of a litigant. Alternatively expressed, the question to be addressed by this Court is whether the circumstances of this case support subordinating the principle of a fair trial to the principle of open justice.
[40] In addressing that question one should not lose sight of the fact that the public interest in preserving open court proceedings is no more compelling than the public interest in preserving the right of a litigant to a fair trial. Indeed, I would go so far as to speculate that if the public were asked which of the two competing principles should prevail, the majority would select the former. This is especially so in criminal trials where the accused is confronted with the formidable prosecutorial resources of the state and his or her liberty interests are at stake. In this case, Atomic Energy is seeking a protective order aimed at preserving its financial interests. In some cases, a court will find that financial harm is not a sufficient justification for closing the courtroom doors. I do not believe this is one of those cases.
[41] I take the position that an objective framework is required when assessing whether the principle of open justice should prevail over the principle of fair trial. To answer that question one has to return to the purposes underscoring the principle of open justice discussed earlier. With respect to the rule of law, the belief that the federal government or Atomic Energy may somehow receive more favourable treatment if the confidentiality order is granted is a non sequitur. This leaves for consideration the right of the public to have access to the truth. This is the point where I believe the nature of the evidence for which a confidentiality order is sought becomes relevant and has been the subject of intelligent debate in the United States: see generally Arthur R. Miller, “Confidentiality, Protective Orders, and Public Access to the Courts” (1991-92), 105 Harv. Law Rev. 427.
[42] No one seems to be concerned with the principle of open justice in cases, for example, where a drug manufacturer seeks to keep confidential the process by which its drug is produced. Admittedly, the information is of a technical nature and unlikely to be understood by most, including the media. The same holds true in the present case. As my colleagues noted at paragraph 97 of their reasons, confidentiality is claimed for only three documents which are likely to be beyond the comprehension of all but those equipped with the necessary technical expertise. But on the other hand, the principle of open justice would take on greater significance if the confidential information were to include, for example, a report outlining the health risks associated with the use of a particular drug. In such circumstances, a compelling argument could be made that the public interest in learning the truth with respect to a drug’s effectiveness overrides any financial concerns expressed by the drug’s manufacturer. Understandably, the proposition that protective orders could be used to conceal information involving public health or safety issues from the public would be met with virulent opposition and the same would probably hold true in other types of cases. For example, returning to the facts in Ethyl Canada, supra, it is open to ask whether the public has the right to know which of Honda’s cars and engines were adversely affected by the gasoline additive for which the federal legislation banned importation.
[43] The fact remains that the type of concerns outlined above do not arise in the present case. Admittedly, the Motions Judge was influenced by the fact that there is an ongoing debate as to Canada’s role as a vendor of nuclear technology. But neither the search for truth in this case, nor the nature of the debate, is affected by the granting of a confidentiality order. What is in issue in this particular proceeding is whether an environmental assessment was carried out by Chinese authorities and, if so, whether it meets the requirements of the Canadian legislation. At the end of the day, this information will be divulged to the Canadian public. The issuance of a confidentiality order will not alter this reality.
[44] Finally, I should like to add that in assessing the public interest in this case, should not consideration be given, for example, to the need to ensure that the site-plans for nuclear installations are not posted on a web-site? Once again I must acknowledge that I am prohibited, by the terms of a confidentiality order granted by a judge of this division of the Federal Court, from revealing sensitive information pertaining to security matters of concern to the Chinese authorities. That sensitive information is found within the documents for which a confidentiality order is being sought.
[45] In my opinion, there is no legal basis on which to hold that on the facts of this case the public interest in open proceedings overrides the risk of harm to which Atomic Energy would be exposed if a confidentiality order does not issue. Specifically, I am of the view that the confidentiality order sought by Atomic Energy would not undermine the two primary objectives underscoring the principle of open justice: truth and the rule of law.
[46] Atomic Energy also alleges that the Motions Judge erred by taking into account the fact that the confidential documents are being produced on a voluntary basis in the sense that it is under no legal obligation to do so. In defence of the Motions Judge, I do not read his reasons in the same light. As I understand him, the issue of voluntariness becomes relevant because of the alternative possibility of filing edited versions of the confidential material which would enable Atomic Energy to make full defence to the allegation of government wrongdoing. As I understand his reasons, the Motions Judge recognized that the confidential information is both relevant and essential to Atomic Energy’s defence. We differ in opinion only to the extent that I do not view the possibility of filing edited versions of the confidential information as being a realistic option in the present circumstances. If I am in error with respect to my appreciation of what was decided by the Motions Judge, then I must respectfully disassociate myself from the understanding that the voluntary submission of confidential information is a relevant consideration.
[47] I would allow the appeal with costs here and in the court below, set aside the order of the Motions Judge dated October 26, 1999, and grant the confidentiality order sought by the appellant, Atomic Energy of Canada Ltd. The cross-appeal should be dismissed with costs to the appellant (respondent on the cross-appeal).
* * *
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[48] This is an appeal from an order of the Trial Division dated October 26, 1999 in which the learned Motions Judge granted an interlocutory motion brought by Atomic Energy of Canada Limited under rule 312 of the Federal Court Rules, 1998 for leave to file a supplementary affidavit by Dr. Pang, and three additional documents, which are referred to in affidavits by Dr. Pang and Mr. Feng that had already been filed. If admitted, these latter documents will be attached as exhibits to the supplementary affidavit of Dr. Pang.
[49] AECL also requested an order under rules 151 and 152 that these documents be treated as confidential. The Judge did not grant this request, but provided in the order that AECL could file an edited version of the documents omitting the sensitive information. In the alternative, if AECL decided not to file the documents in either their original or edited form within 60 days of the order, it could file and serve other material that covered the same ground as the confidential documents, but in a more general manner. More than 60 days have elapsed since the order was made and AECL has not filed other material pursuant to it.
[50] AECL, a Crown corporation that owns and markets CANDU technology, is an intervener with the rights of a party in the application for judicial review instituted by the Sierra Club of Canada in January 1997. The applicant is an environmental public interest group. It alleges that the Government’s provision and authorization of financial assistance for the sale to China of two CANDU nuclear reactors and their construction there triggers the application of the Canadian Environmental Assessment Act, S.C. 1992, c. 37, by virtue of paragraph 5(1)(b). Accordingly, the applicant requests various forms of relief designed to remedy the respondents’ breach of duty in refusing to conduct an environmental assessment of the project as required by the Act.
[51] The respondents and the intervener, on the other hand, deny that the Act applies, and assert that, if it does, there are statutory defences available and, in any event, the Court in the exercise of its discretion should not grant the remedies sought.
[52] The documents in question in this appeal comprise two Environmental Impact Reports on Siting and Construction Design (the EIRs), and a Preliminary Safety Analysis Report (the PSAR). The EIRs were prepared by Chinese authorities and are in the Chinese language. Further, while AECL has supplied an unofficial translation of the reports, it has not yet provided a translation with an affidavit attesting to its accuracy as required by subsection 68(1) of the Rules. The third report, the PSAR, was prepared by AECL with assistance from the Chinese participants in the project.
[53] These three reports, and the translations, contain a mass of technical information, much of which is likely to be incomprehensible to non-experts, even when translated. They are voluminous, running to some thirty volumes and thousands of pages: the table of contents of the PSAR alone is 173 pages long. They describe the ongoing environmental assessment of the project being undertaken by Chinese authorities under the applicable laws of the People’s Republic of China. They are also said to contain material that is not related to the environmental assessment of the project, including commercially sensitive material pertaining to AECL, and information respecting safety and security. Unlike documents prepared under the CEAA in Canada, these documents were not prepared with a view to publication.
[54] These documents are referred to and summarized in affidavits by Dr. Simon H. Pang, a senior employee of AECL and Deputy Project Director of the Quinshan Phase III CANDU Project, and by Mr. Lin Feng, an expert in Chinese environmental law, particularly as applied to nuclear energy. They contain the technical data on which the affidavits rest.
[55] The Sierra Club had contended that its right to cross-examine Dr. Pang and Mr. Feng on their affidavits was effectively rendered nugatory by the absence of the supporting documents to which they referred, and that the summary provided in the affidavits was insufficient for this purpose. It proposed to take the position that the affidavits should therefore be afforded very little weight by the judge hearing the application for judicial review.
[56] AECL appeals from the order alleging that the Motions Judge erred in refusing its request for a confidentiality order for these reports. The Sierra Club cross-appeals on the ground that the Motions Judge erred when he found that the disputed documents were relevant to the disposition of the application for judicial review.
[57] Both parties contend that the Motions Judge erred when, without any submissions from counsel, he gave AECL the option of submitting other material instead of filing the confidential documents in either their original or edited form. However, since the 60 days provided by the Judge for filing any such material have elapsed, I need not deal with this issue. Nonetheless, I would have thought that it was within the Judge’s discretion over the terms of the order sought by AECL to insert the provision to which the parties object, without having to give them prior notice and an opportunity to make submissions, especially given the importance of avoiding further delay at the interlocutory stage of these proceedings.
[58] It is convenient to consider first the cross-appeal of the Court’s order granting leave to admit the documents since, if the Sierra Club is successful on this ground, the confidentiality issue becomes moot.
B. LEGISLATIVE FRAMEWORK
[59] It will be convenient here to set out the provisions of the Canadian Environmental Assessment Act that are most immediately relevant to the issues canvassed in this appeal.
5. (1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority
…
(b) makes or authorizes payments or provides a guarantee for a loan or any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except where the financial assistance is in the form of any reduction, avoidance, deferral, removal, refund, remission or other form of relief from the payment of any tax, duty or impost imposed under any Act of Parliament, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the Act, regulation or order that provides the relief to be carried out;
…
54. …
(2) Subject to subsection (3), where a federal authority or the Government of Canada on behalf of a federal authority enters into an agreement or arrangement with any government or any person, organization or institution, whether or not part of or affiliated with a government, under which a federal authority exercises a power or performs a duty or function referred to in paragraph 5(1)(b) in relation to projects the essential details of which are not specified and that are to be carried out both outside Canada and outside federal lands, the Government of Canada or the federal authority shall ensure, in so far as is practicable and subject to any other such agreement to which the Government of Canada or federal authority is a party, that the agreement or arrangement provides for the assessment of the environmental effects of those projects and that the assessment will be carried out as early as practicable in the planning stages of those projects, before irrevocable decisions are made, in accordance with
(a) this Act and the regulations; or
(b) a process for the assessment of the environmental effects of projects that is consistent with the requirements of this Act and is in effect in the foreign state where the projects are to be carried out.
C. ISSUES AND ANALYSIS
ISSUE 1: In deciding to admit the documents did the Motions Judge err in exercising his discretion under rule 312?
[60] As applicable to the facts of this case, rule 312 provides that with leave of the Court a party may file affidavits in addition to those filed in the time prescribed by rules 306 and 307. I should note again that by an order of Associate Senior Prothonotary Giles, dated May 8, 1998, AECL was granted intervener status with all the rights of a party, save for certain provisions that are not relevant here dealing with duplication.
[61] In Fogal et al. v. Canada et al. (1999), 161 F.T.R. 121 (F.C.T.D.), Prothonotary Hargrave stated (at paragraph 7 [page 124]) that, in the exercise of the Court’s discretion conferred by rule 312, “the main concerns ought to be whether the additional material will serve the interests of justice, will assist the court and will not seriously prejudice the other side.”
[62] The learned Prothonotary also added (at paragraph 8 [pages 124-125]):
… in my view, supplemental affidavits should only be allowed in limited circumstances, for to do otherwise would not be in the spirit of judicial review proceedings, which are designed to obtain quick relief through a summary procedure.
I would only add that, in the context of this application, where there have already been 12 interlocutory motions, and other applications for judicial review of comparable complexity, the notion that the summary nature of the proceeding is synonymous with the grant of “quick relief” unfortunately does not reflect reality. As the Motions Judge aptly noted in his reasons for judgment in the instant case (at paragraph 4 [page 408]):
… the fact that an application for judicial review is a summary procedure does not mean that the issues involved lend themselves to summary disposition. Where complex transactions are sought to be set aside on the ground that they offend a significant piece of legislation, even a summary procedure may be ponderous.
Nonetheless, the avoidance of the undue “piling on of paper”, to borrow the words used by the Motions Judge in the same paragraph, is an aspiration that ought not to be omitted from the balance when the claims of relevance are weighed against those of prejudice to other parties.
(i) Relevance
[63] It is common ground that the documents in dispute are not relevant to the principal question in this litigation, which is whether, on the facts of this case, the CEAA is engaged by paragraph 5(1)(b). However, the learned Motions Judge held that the documents were potentially relevant to the Court’s exercise of its discretion to grant relief in the event that it found that the respondents were in breach of a legal obligation to conduct an environmental assessment of the CANDU project. While the award of declaratory relief is discretionary (Solosky v. The Queen, [1980] 1 S.C.R. 821), the issue of discretion is apt to arise most sharply in respect of the request for orders quashing the decision of the respondent Ministers to provide financial assistance and directing that no further payments be made under the loan guarantee until an environmental assessment has been completed in accordance with the CEAA.
[64] AECL also argued that the documents are relevant to two defences that may be available under sections 8 and 54 of the CEAA. However, having satisfied himself that the documents were relevant to the Court’s exercise of discretion to refuse a remedy notwithstanding a violation of the CEAA, the Motions Judge did not feel the need to consider whether they were also relevant to either of these statutory defences.
[65] AECL will succeed on the relevance issue if the Court is satisfied that the documents are relevant to any one of the legal grounds on which the intervener has relied. Moreover, it is not for the Court to decide on an interlocutory motion such as this whether the defences raised by AECL will in fact prevail when the application is eventually heard on its merits: potential success is sufficient.
[66] In my opinion, the documents in dispute are clearly relevant to the defence under paragraph 54(2)(b) that AECL proposes to raise if it is found that paragraph 5(1)(b) triggers the application of the CEAA to this project. Paragraph 54(2)(b) in essence provides an exemption from the processes otherwise required by the Act if there is an arrangement between the Government of Canada and an organization in the country where the project is to be carried out that an environmental assessment of the project will be conducted in that country in accordance with an assessment process that is consistent with the requirements of the Act and is in effect in that country.
[67] Of course, whether AECL will be able to establish this defence in law or on the evidence before the Motions Judge cannot be determined here. It is sufficient for AECL to demonstrate, as it has done, the potential relevance of the documents to one of the issues in dispute.
[68] In my opinion, the documents are also potentially relevant to the exercise of the Court’s discretion to refuse a remedy, particularly the orders to quash the decision to provide financial assistance and to order a halt to further payments under the contract. It would be open to the respondents and the intervener to argue that, even if the Ministers were in breach of the Act, an environmental assessment had been conducted in China that was broadly similar to that prescribed under the CEAA.
[69] The mischief at which the Act is aimed is the avoidance of environmental damage by requiring that potentially hazardous activities are subject to an assessment of the risks that they pose. Accordingly, if an adequate environmental assessment has been conducted in China, the purpose of the Act will arguably have been met and it would be wasteful to require another assessment to be conducted under the CEAA. Discretionary remedies are not granted on an application for judicial review if they would serve no useful purpose, especially when to grant the relief requested would, as here, have serious adverse consequences for both the public and the private interests involved in this major project.
[70] Of course, for this argument to be given credence it will be necessary for AECL to demonstrate that the assessment conducted in China was broadly similar to that mandated under the CEAA so as to constitute an adequate alternative. The documents describing the environmental assessment carried out by Chinese authorities are said to be relevant to establishing this.
[71] On the other hand, I do not share the doubt expressed by the Motions Judge that, because the project is outside Canada, statements made by La Forest J. in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at page 80 do not apply to this case. La Forest J. had rejected the argument that, since an assessment of an undertaking in Alberta had already been conducted under provincial legislation, relief for breach of the CEAA should be refused because it would have no practical effect. He suggested that a lawfully conducted CEAA assessment might still have “some influence over the mitigative measures that may be taken to ameliorate any deleterious environmental impact”.
[72] In contrast, the Motions Judge maintained that, in the instant case, the Government of Canada would be unable to influence the taking of any “mitigative measures” indicated by a CEAA environmental assessment because the project was being undertaken outside Canada. However, it seems to me that the financing provided by the respondents through the Export Development Corporation may give sufficient leverage to enable the Canadian Government to catch the attention of the Chinese authorities if and when it asked them to attend to problems identified by a CEAA assessment.
[73] I note here that paragraph 54(2)(b) of the CEAA explicitly calls for a comparison of the assessment processes. Undertaking this kind of comparison for the purpose of paragraph 54(2)(b), or in connection with the award of the discretionary remedy, does not pose the same difficulties for the Court as those identified by Reed J. in Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C. 229 (T.D.). In that case, Reed J. refused to attempt to assess the accuracy of the results of competing scientific environmental studies because this was beyond judicial expertise.
(ii) Prejudice
[74] I agree with the Motions Judge’s finding that the benefit to the intervener of being granted leave to file these documents, and the assistance that they will provide to the Court, outweigh any prejudice to the Sierra Club as a result of delay. After all, the Sierra Club had previously maintained that these documents were essential to its ability to conduct an effective cross-examination of Dr. Pang and Mr. Feng on their affidavits.
[75] While I recognize that it would no doubt have been more convenient for the applicant to have had these documents earlier in the litigation process, I would also observe that the delays that seem endemic in this matter are not all attributable to the intervener and the respondents. Moreover, since dates have now been fixed for the hearing of the application, which the Sierra Club has stated that it will meet even if the additional documents are filed, it seems unlikely that the Sierra Club will be prejudiced by further delay as a result of the grant of leave to AECL to file them.
[76] Having decided that the Motions Judge was correct to grant leave under rule 312, I must now consider the confidentiality issue.
ISSUE 2: Did the Motions Judge err in refusing to exercise his discretion under rule 151 to grant a confidentiality order in respect of the documents that he gave leave to file out of time?
[77] Rule 151 of the Federal Court Rules, 1998 provides as follows:
151. (1) On motion, the Court may order that material to be filed shall be treated as confidential.
(2) Before making an order under subsection (1), the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.
[78] The Motions Judge accepted the confidentiality of the disputed documents because they contain commercially sensitive information pertaining to AECL and information that, if disclosed, may be damaging to third parties. In addition, AECL had received them in confidence from the Chinese authorities who are agreeable to AECL’s filing the documents for the purpose of litigation, but only if this can be done without their public disclosure.
[79] The Motions Judge considered the harm that AECL might suffer if it filed the documents without the protection of a confidentiality order. He also considered AECL’s submission that, if it decided not to file them because a confidentiality order was refused, the intervener would not be able to mount a full answer and defence to the application. Counsel for AECL reminded the Court that the Sierra Club had said that it would argue that, if it did not have access to the confidential documents for the purpose of cross-examining Dr. Pang and Mr. Feng on their affidavits, the affidavits would consequently be entitled to little, if any, evidential weight.
(a) Public interest: immutable or contextual in content?
[80] The Motions Judge weighed these confidentiality considerations against the infringement of the principle of open public access to court documents in the context of the dispute before him. In particular, he stated that, even though now constitutionally enshrined in paragraph 2(b) of the Canadian Charter of Rights and Freedoms, the weight to be given to the principle of openness should, to an extent, depend on the circumstances of the particular case.
[81] The Motions Judge held that in “public law” cases there is a very high level of public interest in ensuring open access to court proceedings and to documents filed with the Court, thus increasing the burden on the party seeking to justify a departure from the principle. This application for judicial review is clearly a case of considerable public interest significance since it challenges the legality of the federal government’s decision to provide $1.5 billion to finance the sale and construction of nuclear reactors in China without subjecting the project to an environmental assessment in accordance with the CEAA. In addition to the importance of the subject-matter of the litigation to the public interest, the case has attracted considerable media attention. That a party has the reasonable belief that material is confidential, and its disclosure may be damaging to its interests, is not always sufficient to justify a confidentiality order.
[82] In response, counsel for AECL argued that, in ascribing a variable content to the principle that the administration of justice must be conducted openly save in the most exceptional circumstances, the Motions Judge had committed a reversible error by proceeding on a wrong legal principle. Counsel maintained that the constitutional underpinning of the principle is to be found in the basic democratic value of accountability for the exercise of judicial power, and hence was to be applied in a uniform manner, regardless of the nature of the particular litigation in which it is invoked.
[83] Furthermore, counsel argued, to the extent that the public interest of a case depended on whether it involved public law, the criterion formulated by the Judge was incoherent, since it would be extremely difficult to define what was a “public law” case.
[84] For example, it has been said that cases involving allegations of patent infringement are “public law” in nature: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.), at page 600. I note here, however, that what Strayer J.A. actually said in David Bull was that, while the real adversaries in the litigation were the brand-name and generic drug companies, the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, with which the case was concerned, “pertain to public law, not private rights of action.” And, since David Bull was an application for judicial review, a public law proceeding at least in form, and not a private law action for patent infringement, it does not do much to advance AECL’s position.
[85] Counsel also asked how an assessment could be made of the extent to which a case affects not only the private rights of the parties, but also the public interest. By the quantity of media coverage? By the fact that the Government or a public interest group is a party? And, is the weight to be given to the public interest aspect of a case to be determined by reference to the nature of the evidence for which a confidentiality order is sought, or by the nature or subject-matter of the litigation?
[86] In my opinion, the Motions Judge was correct to conclude that it was not always appropriate to grant a confidentiality order when the party seeking it could establish a reasonable belief that it would be harmed by the disclosure of confidential documents. It was necessary also to assess the public interest in the openness of the judicial process in the case, a factor to which more weight should be given in some cases than in others.
[87] While all litigation is important to the parties, and there is a public interest in ensuring the fair and appropriate adjudication of all litigation that comes before the courts, some cases raise issues that transcend the immediate interests of the parties and the general public interest in the due administration of justice, and have a much wider public interest significance.
[88] Thus, there will be cases in which it is clear that almost no other interest will outweigh the need for members of the public to be assured that, if they wish to know what material was before the court when it made its decision, they or others on their behalf, such as the news media, could inspect it. The integrity of the judicial process and the legitimacy of the exercise of judicial power require nothing less. As Dickson C.J. said in Attorney General of Nova Scotia et al. v. MacIntyre, [1982] 1 S.C.R. 175, at pages 186-187, a case concerning public access to search warrants and supporting material:
In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance.
[89] Of course, as counsel for AECL pointed out, it may not be possible to formulate a crisp rule for defining the level of public importance that any given case has. However, since the possible impact of the litigation on the public interest is no more than one factor in the discretionary exercise of weighing the claims for confidentiality against the principle of openness in the administration of justice, a certain lack of precision may not be a matter of great moment. This is, after all, the inevitable price of adopting a contextual approach to the solution of legal problems and, in many areas of the law, it is a price that the courts have become increasingly willing to pay.
[90] Accordingly, the factors identified by counsel for AECL as possibly relevant to assessing the public interest importance of a case should not be regarded as mutually exclusive, but as cumulative indicators of the direction in which the resolution of the issue in a particular case lies. In some cases the indicators may all point in one direction, while in others their message may be more indeterminate. In yet other cases some of the indicators will assume a great importance, while others will be more or less irrelevant.
[91] Indeed, it is clear from the case law that courts have already recognized that, to an extent at least, the weight to be assigned to the principle of openness varies with context. For example, in upholding the application of a confidentiality order to certain documents in AB Hassle v. Canada (Minister of National Health and Welfare), [2000] 3 F.C. 360 this Court recently took into consideration the relatively small public interest at stake in both the nature of the litigation, and the evidence in respect of which confidentiality was claimed.
[92] The case involved a dispute arising from the Patented Medicines (Notice of Compliance) Regulations about whether the respondent had used a non-infringing process for producing a patented medicine. The documents for which the benefit of a protective order was sought were of a highly technical nature and disclosed the identity and quantity of the chemical ingredients used by the generic drug company to produce the allegedly infringing product.
[93] The proceeding in AB Hassle was an application for judicial review, and therefore was “public law” in nature. However, it is equally important to note that it arose from the administration of a statutory scheme in which confidentiality is a key component, and where the substantive dispute is typically between the private parties. The NOC Regulations effect a limited blending of the legal regimes for the protection of intellectual property rights and the regulatory approval of the safety and effectiveness of a new medicine before it can be marketed in Canada. Confidential information is a principal asset of the pharmaceutical industry.
[94] This emphasis on confidentiality is, of course, in sharp contrast with the CEAA, where openness and public participation in the assessment process are of fundamental importance. Moreover, although the commercial interests of AECL are directly implicated in the outcome of this litigation, the focus of the application is an alleged breach of statutory duty by the respondent Ministers in approving financing for this project without submitting it to an assessment under the CEAA, a matter that they and AECL are contesting vigorously.
[95] In contrast to AB Hassle, supra, there are cases in which the courts have inferred from the nature of the litigation that there was a particularly high level of public interest in maintaining the principle of openness to its fullest extent. For example, in Ethyl Canada Inc. v. Canada (Attorney General) (1998), 17 C.P.C. (4th) 278 (Ont. Gen. Div.), at page 283, Swinton J. ordered disclosure after weighing against the claim for confidentiality the fact that it was being made in “an important constitutional case, in which [scil. those opposing a protective order] have argued that it is important for the public to understand the issues at stake.”
[96] Similarly, in MDS Health Group Ltd. v. Canada (Attorney General) (1993), 15 O.R. (3d) 630 (Gen. Div.), Lane J. said (at page 635):
The public nature of the defendants, the protection of the public who may trade in the shares of the plaintiff, the nature of the allegations made against public officers, the fact that the matter arises out of a controversial government policy, all lead inexorably to the conclusion that this is not a case where secrecy can be justified to protect private interests.
[97] Thus, having considered the nature of this litigation, and having assessed the extent of public interest in the openness of the proceedings in the case before him, the Motions Judge cannot be said in all the circumstances to have given this factor undue weight, even though confidentiality is claimed for only three documents among the small mountain of paper filed in this case, and their content is likely to be beyond the comprehension of all but those equipped with the necessary technical expertise.
(b) The “voluntary” nature of the disclosure
[98] AECL also argued that the Motions Judge erred by taking into account the fact that it was not invoking confidentiality as a reason for refusing to discharge its legal duty to produce documents demanded by its opponent. Rather, AECL was asking that documents be treated as confidential that it had decided for its own tactical reasons to introduce. The Motions Judge regarded the “voluntariness” of AECL’s introduction of the documents as “very significant to the resolution of this issue” in his exercise of discretion to refuse the confidentiality order in the form in which it was sought.
[99] With all respect to the learned Judge, in my opinion he attached too much weight to this consideration. If the documents were important to AECL’s ability to make a full answer and defence, then it would decide at its peril not to file them. For the purpose of determining the true “voluntariness” of a person’s conduct, the law commonly equates practical compulsion with legal obligation.
[100] It is important here to recall that the Sierra Club proposed to argue that, without the complete reports to which the affidavits of Dr. Pang and Mr. Feng referred as their essential underpinning, the affidavits were of next-to-no value. For present purposes it is not necessary to decide whether this will in fact be the view taken by the judge hearing the application for judicial review. It is sufficient for AECL to demonstrate, as it has, that these documents were potentially relevant to an issue that is likely to be in dispute.
[101] In my view, in the circumstances of this case the fact that AECL was claiming confidentiality for documents that it was “voluntarily” asking the Court to admit was given too much weight by the Judge as a factor militating towards refusing to grant the confidentiality order. However, given the Judge’s recognition that a party’s “tactical decisions” as to whether to put in certain evidence may engage very significant interests of a party, I would not wish to make too much of this point.
(c) Conclusion
[102] While the Motions Judge may have placed too much emphasis on the voluntariness factor, it does not follow that his decision on the confidentiality issue must therefore be set aside. It is open to this Court on an appeal to consider whether that error vitiated the ultimate conclusion. In my view it did not, and for three reasons.
[103] First, like the Motions Judge, I attach very great weight to the principle of openness in the circumstances of this case to every aspect of the proceedings, including the documentary evidence. Second, the inclusion in the affidavits of a summary of the reports from which it draws may well go a long way to compensate for the absence of the originals, if AECL decides not to put them in without a confidentiality order.
[104] Third, if AECL takes the opportunity offered of submitting an edited version of the documents with the commercially sensitive information expunged (but presumably still available to counsel and the Court on the usual conditions), the claim for confidentiality will rest largely on AECL’s fear of a loss of business if, in order to protect its interests in the course of litigation, it discloses parts of documents in breach of an undertaking given to the Chinese authorities. In the circumstances of this case, I would rank such a claim towards the low end of the confidentiality spectrum.
[105] Nor do I think that the Judge committed a reversible error when he offered AECL the opportunity to file an edited version of the confidential documents: this was well within his discretion to fashion an order that balanced the competing interests. Protestations by AECL of unworkability are premature in the absence of evidence that an attempt has been made, with the assistance of the judge if necessary, to operationalize this aspect of the order.
[106] Finally, it was argued that the Motions Judge erred in law when he considered the request for the confidentiality order without first examining the documents. While there are undoubtedly situations in which the Judge ought to inspect documents for which confidentiality is being sought, this is not one of them: the documents are voluminous, highly technical and not completely translated, and the Judge had summaries available to him.
D. DISPOSITION
[107] For these reasons, I would dismiss the appeal and cross-appeal, with the costs of both to be in the cause.
Sharlow J.A.: I agree.