2,339,447 / Internet Protocol Televsion / Fibe TV, FibreOp
This decision raises a couple of interesting points regarding procedure and substantive law of confidentiality orders. As discussed here, MediaTube's infringement action against Bell fell apart during discovery, and Locke J’s decision on the meritslargely addressed costs: 2017 FC 6. (And see 2017 FC 495 discussed here further clarifying the costs order.)
During the trial, in an exchange with the Court, Bell identified certain exhibits and transcripts that it felt should be treated as confidential. MediaTube did not object at that time, but it did object after retaining new counsel, and just after the trial decision was issued, MediaTube filed a motion seeking a declaration that these exhibits and transcripts are part of the public domain, and that they be made available to the public [4]-[6]. (The Court of Appeal has indicated that the hearing of the appeal would not be scheduled until after a decision on this motion [7].)
No formal evidence was submitted on the issue of confidentiality and no formal Confidentiality Order had ever been granted, but Bell had raised the issue of confidentiality several times during the trial, asking that certain material be treated as confidential, and Locke J had agreed [15], [16], [18]. Thus the issue of confidentiality had been duly raised, considered and decided at trial [20], and Locke J held that the matter was therefore res judicata notwithstanding the absence of a formal order (citations omitted):
[20] The fact that no formal Confidentiality Order was issued does not render null my
rulings on confidentiality, and does not impede the application of the principle of res
judicata. In addition, I am concerned about potential negative effects on the efficient
conduct of trials in the future if I were to give weight now to Bell’s failure to make a
formal motion, supported by formal evidence, for a formal Confidentiality Order. . . . The
issuance of the order sought by MediaTube, and the consequent loss of confidentiality of
Bell’s information, would likely prompt future litigants with information that all parties
agree is confidential to devote unnecessary resources to obtain formal Confidentiality
Orders.
This is not to say that a formal order is never advisable, but only that the need for a formal order at trial should be left to the trial judge [20].
MediaTube also relied on the fact that the court had not been formally closed when the confidential testimony was heard. After noting that it was unlikely that any member of the public had actually had access to the confidential evidence [23], Locke J rejected this argument as well, for similar reasons of judicial economy:
[24] As with the issue of Bell’s failure to request a formal Confidentiality Order, I am
concerned about potential negative effects on the efficient conduct of trials in the future if
I were to give weight now to Bell’s failure to request that the courtroom be formally
closed during discussion of confidential information during trial. Requiring a party to take
this step when it has no practical effect would impede the efficient conduct of trial.
The decision also raised a significant point on the substantive law related to confidentiality. In Sierra Club of Canada 2002 SCC 41, the SCC held that a confidentiality order should only be granted when it is necessary “to prevent a serious risk to an important interest, including a commercial interest.” The SCC elaborated by saying “In order to qualify as an ‘important commercial interest’, the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in confidentiality” [53], [55]. While the primary basis for his decision is that the matter was res judicata, Locke J also remarked that
[22] . . . I am satisfied that, where a party that finds itself involved in litigation (especially
as a defendant in an action that is without merit) and is compelled by the rules of
discovery to divulge sensitive and confidential information, there is a strong public
interest in that party being able to maintain the confidentiality of that information.
Otherwise, no confidential information is safe. I am satisfied that the salutary effects of
maintaining the confidentiality of the information in question in the present motion,
outweigh its deleterious effects on the right to free expression, including the public
interest in open and accessible court proceedings.
This strikes me as a sensible interpretation of the SCC’s remarks.
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