Ottawa, Ontario, September 19, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
Plaintiff/Defendant in Counterclaim
and
Defendant/Plaintiff in Counterclaim
REASONS FOR ORDER AND ORDER
[1] This is a motion for an order protecting and maintaining the confidentiality of certain documents and information to be produced by the parties during the course of these proceedings. Rule 151 of the Federal Courts Rules permits the issuance of a protective order to protect certain material which should be treated as confidential.
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151. (1) On motion, the Court may order that material to be filed shall be treated as confidential. Demonstrated need for confidentiality (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
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151. (1) La Cour peut, sur requête, ordonner que des documents ou éléments matériels qui seront déposés soient considérés comme confidentiels. Circonstances justifiant la confidentialité (2) Avant de rendre une ordonnance en application du paragraphe (1), la Cour doit être convaincue de la nécessité de considérer les documents ou éléments matériels comme confidentiels, étant donné l’intérêt du public à la publicité des débats judiciaires
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[2] A confidentiality order should be granted when such an order is necessary to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonable alternative measures will not prevent the risk, and the salutary effects of the confidentiality order, including the right of a litigant to a fair trial, outweigh its effects on the public interest in having open courts (see Sierra Club of Canada v. Canada (Minister of Finance), (2002) 18 C.P.R. (4th) 1 at 19 (S.C.C.).).
[3] As was decided by the Federal Court of Appeal in AB Hassle v. Canada (Minister of National Health and Welfare), (2000) 5 C.P.R. (4th) 149 at 155 (F.C.A.), the basis for the issuance of such an order is a subjective but reasonably held belief. The plaintiff, Orange County Choppers Inc., suggests that in this case it has a reasonable belief that there is a serious risk that the disclosure of the documents to the public, including their competitors, may harm their interests. I agree.
[4] The documents, which the plaintiff expects to file, contain information that could be used by their competitors against the plaintiff’s interests. These documents include: the license agreements, the commission reports, invoices concerning sales in Canada and the terms and conditions of the license agreements.
[5] The information that the plaintiff is required to disclose includes:
a) financial information of the parties regarding their sales in Canada, which is very sensitive information that could allow competitors to have access to their market strategy; and
b) information relating to the licensees of Orange County Choppers, also information that is highly sensitive and could allow competitors to interfere in those economic relationships.
[6] This information has thus far been treated as confidential by the plaintiff and I have no hesitation in concluding that it should remain so. This information should be kept confidential and this is sufficient to justify the issuance of a protective order.
[7] I do not agree with the suggestion of the defendant Trio Selection Inc. that the public interest would be harmed by the non-disclosure of this information. The proceedings are not confidential and the confidentiality of the documents may be challenged even by a third party. There is no obvious justification that the public interest would be harmed if they are not aware of the plaintiff confidential and proprietary information.
[8] It is also important to add that the plaintiff will provide the information to the defendant, who will not suffer any prejudice from this confidentiality order.
[9] In proceedings regarding intellectual property, protective orders are routinely granted on the basis that the information obtained in preparation for trial may be maintained in confidence and not be divulged to the public.
[10] The defendant has failed to demonstrate any evidence that the principle of open justice will be harmed if this information is kept confidential and a protective order is issued.
[11] As is clearly mentioned by the plaintiff, all parties and the Court will have access to the confidential documents, and discovery based on their contents will be allowed.
[12] I have carefully reviewed the written representations of the parties and I have also asked questions regarding the reasons and arguments raised by the defendant to oppose this motion. Consequently, I find that the defendant has failed to provide any evidence that a protective order should not be issued in this case.
ORDER
Therefore, this Court orders that:
- The motion for a protective order is granted;
- Costs in favour of the plaintiff Orange County Choppers Inc.;
- The protective order in the form of the draft submitted by the plaintiff/defendant to counterclaim Orange County Choppers Inc. will be issued separately.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1132-05
STYLE OF CAUSE: Orange County Choppers Inc. v. Trio Selection Inc.
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: August 14, 2006
REASONS FOR ORDER AND ORDER: Mr. Justice Blais
APPEARANCES:
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Hilal El Ayouby
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Claudette Dagenais
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SOLICITORS OF RECORD:
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Fasken Martineau DuMoulin LLP Montreal, Quebec
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Dagenais & Associés Montreal, Quebec
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