Date: 20031128
Docket: T-2006-99
Citation: 2003 FC 1401
Montréal, Quebec, November 28, 2003
Present: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
CAMOPLAST INC.
Plaintiff/defendant to counterclaim
and
SOUCY INTERNATIONAL INC.
and
KIMPEX INC.
Defendants/plaintiffs by counterclaim
REASONS FOR ORDER AND ORDER
[1] This is a motion by the plaintiff to have a confidentiality order issued pursuant to rules 3, 4 and 151 of the Federal Court Rules, 1998 (the rules) so that a certain number of documents related to its research and development activities pertaining to the possibility of reducing the noise generated by the tracks of snowmobiles (the documents to be protected) are not available to the opposing party but are nonetheless available to opposing counsel and to an expert independent of the defendants Soucy International Inc. and Kimpex Inc. (hereinafter collectively "the defendant Soucy").
[2] The major stumbling block between the parties does not really have anything to do with reducing public access to the documents to be protected but instead pertain to whether Soucy's representative, who is assisting its counsel and who is the person in charge of research and development activities for the defendant Soucy, should have access to the documents to be protected.
[3] For the reasons that follow, I do not believe it would be appropriate to grant the plaintiff's motion with costs to follow and to issue a confidentiality order under separate cover in accordance with the terms submitted by the plaintiff in the draft order attached to its motion record; an order in which we will expunge paragraph 2(vii), however.
[4] In support of its motion, the plaintiff submitted an affidavit from the head of its department of research and development (the affidavit of Denis Courtemanche) in which Mr. Courtemanche identifies sufficiently in my view that the documents to be protected are of a confidential nature, that they were and are treated as such at all relevant times and that serious and substantial prejudice would be caused to the plaintiff if the head of Soucy's research and development (Mr. Deland) - the plaintiff's main competitor - had access to these documents.
[5] I believe in this case that the affidavit of Denis Courtemanche meets both the requirements of the Federal Court of Appeal in Glaxo Group Ltd. v. Novopharm Ltd. (1998), 81 C.P.R. (3d) 185, page 187, paragraph [6] and the applicable instructions of the Supreme Court in Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.
[6] In Sierra Club, the Court was dealing with a motion for a confidentiality order under rule 151 in a context that initially is very different from ours. The Supreme Court identifies, at paragraph 84 of its reasons, the public law context confronting it:
[84] This motion relates to an application for judicial review of a decision by the government to fund a nuclear energy project. Such an application is clearly of a public nature, as it relates to the distribution of public funds in relation to an issue of demonstrated public interest. Moreover, as pointed out by Evans J.A., openness and public participation are of fundamental importance under the CEAA. Indeed, by their very nature, environmental matters carry significant public import, and openness in judicial proceedings involving environmental issues will generally attract a high degree of protection. In this regard, I agree with Evans J.A. that the public interest is engaged here more than it would be if this were an action between private parties relating to purely private interests.
(My emphasis.)
[7] In this matter, it is a case of alleged infringement and invalidity of a patent. So it is much more than "an action between private parties relating to purely private interests".
[8] At paragraph 53 of its reasons, the Supreme Court sets out the following two-step test for itself in order to resolve the situation submitted to it:
[53] Applying the rights and interests engaged in this case to the analytical framework of Dagenais and subsequent cases discussed above, the test for whether a confidentiality order ought to be granted in a case such as this one should be framed as follows:
A confidentiality order under Rule 151 should only be granted when:
(a)such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
(b)the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.
[9] As for the first branch of the test, that of necessity, Denis Courtemanche's affidavit refers, aside from the confidential aspects already mentioned, to the existence of a confidentiality agreement between the plaintiff and Bombardier. Mr. Courtemanche was not cross-examined on his affidavit and Soucy did not file any evidence to the contrary. Accordingly, the Court could not question the existence or the significance of this agreement because it was verbal and not reduced to writing. Nor can we rule out the existence of such an agreement, because the plaintiff did not produce a reciprocal affidavit from Bombardier to corroborate the existence of the agreement. I am therefore satisfied that there is a question of general commercial or important interest.
[10] As for the possibility of other, reasonable alternatives to the confidentiality order being sought, I am persuaded, in light of Mr. Deland's situation at Soucy, that it is reasonable that the plaintiff would not want to settle for an order that would allow Mr. Deland to have access to documents to be protected on condition that he be bound by confidentiality. Moreover, I am persuaded that in this case, there are not any other reasonable alternatives to issuing the order that is sought.
[11] On the other hand, I am persuaded that the beneficial effects of the confidentiality order being sought outweigh its deleterious effects. As for the latter, Soucy essentially argues that it could not argue its position if Mr. Deland does not have access to the documents to be protected.
[12] Although it is the plaintiff that has the burden of proof on the present motion, I believe that we could have expected Soucy to file an affidavit to support such an allegation, which it did not do. In this case, Soucy's counsel will certainly have access to the documents to be protected. Further, the draft order submitted by the plaintiff provides at paragraph 11 that an expert without close ties to either party could assist any counsel. I think, therefore, that the balance sought under the second branch of the test in Sierra Club also favours the issuance of the confidentiality order sought by the plaintiff. As mentioned earlier, such a measure is granted by separate order.
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"Richard Morneau"
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Prothonotary
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Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-2006-99
CAMOPLAST INC.
Plaintiff/
Defendant to counterclaim
and
SOUCY INTERNATIONAL INC.
and
KIMPEX INC.
Defendants/
Plaintiffs by counterclaim
PLACE OF HEARING: Montréal , Quebec
DATE OF HEARING: November 24, 2003
REASONS FOR ORDER BY RICHARD MORNEAU, PROTHONOTARY
DATED: November 28, 2003
APPEARANCES:
| Jean-Sébastien Brière
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For the plaintiff/defendant to counterclaim
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| Éric Ouimet
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For the defendants/plaintiffs by counterclaim
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| Smart & Biggar
Montréal, Quebec
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For the plaintiff/defendant to counterclaim
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| Brouillette Charpentier Fortin
Montréal, Quebec
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For the defendants/plaintiffs by counterclaim
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