Date: 20060919
Docket: T-1132-05
Citation: 2006
FC 1122
Ottawa, Ontario, September 19, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
ORANGE
COUNTY CHOPPERS INC.
Plaintiff/Defendant in
Counterclaim
and
TRIO
SELECTION INC.
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.
“Pierre
Blais”
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