Sealing Orders After Sierra Club
27 The Advocates’ Quarterly 173 (2003)
26 Pages Posted: 30 Apr 2013
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: Suggested Citation