Sealing Orders After Sierra Club

27 The Advocates’ Quarterly 173 (2003)

26 Pages Posted: 30 Apr 2013

See all articles by John B. Laskin

John B. Laskin

Torys LLP

Dan W. Puchniak

Yong Pung How School of Law, Singapore Management University; ECGI

Date Written: December 30, 2003

Abstract

Although common law courts have historically rejected mere confidentiality as a justification for not disclosing relevant information in litigation or keeping it from public access, the Supreme Court of Canada, in its recent decision in Sierra Club of Canada v. Canada (Minister of Finance), appears to have lowered the bar for protecting confidential commercial information from public disclosure by acknowledging a litigant’s commercial interest as an important value that must be protected. More so than ever, the confidential nature of commercial documents may be, if properly articulated, a justification for denying public access to court documents. However, it is too early to tell how courts will apply Sierra Club. There is a risk that courts will apply it in a manner that would essentially negate the entire confidential commercial information exception to the general rule of open access to the courts.

This article is organized as follows. It begins by contrasting the protection of confidentiality of court documents with other measures that may be taken to protect the confidentiality of commercial information in the course of a civil proceeding. Part II will describe the history of the jurisprudence related to the protection of confidential commercial documents that become part of the court file. Part III will analyze the recent Supreme Court of Canada decision Sierra Club and examine the cases that have implemented its two- part test for determining when the public should be denied access to confidential commercial documents that have become part of the court file. Finally, Part IV will outline some practical advice and strategies that can be used to help increase the probability that confidential commercial documents do not become public in a civil proceeding.

Keywords: Sealing orders, privilege, confidential information, public information, disclosure, litigation process, confidential commercial information, court documents

JEL Classification: K4, K41

Suggested Citation

Laskin, John B. and Puchniak, Dan W., Sealing Orders After Sierra Club (December 30, 2003). 27 The Advocates’ Quarterly 173 (2003), Available at SSRN: https://ssrn.com/abstract=2257974

John B. Laskin

Torys LLP ( email )

79 Wellington Street West, Suite 3000
Box 270, TD Centre
Toronto, NY Ontario M5K 1N2
Canada

Dan W. Puchniak (Contact Author)

Yong Pung How School of Law, Singapore Management University ( email )

55 Armenian Street
Singapore, 179943
Singapore

ECGI ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

HOME PAGE: http://https://ecgi.global/users/dan-puchniak

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