Canada (Attorney General) v. Nike Canada Ltd., docket A-583-96

     A-583-96

CORAM:      STRAYER J.A.

     LINDEN J.A.

     ROBERTSON J.A.

B E T W E E N:

     THE ATTORNEY GENERAL OF CANADA

     Applicant

     " and "

     NIKE CANADA LTD.

     Respondent

HEARD at Ottawa, Ontario on Tuesday, November 26, 1996

JUDGMENT delivered from the Bench at Ottawa, on November 26, 1996

REASONS FOR JUDGMENT BY:      STRAYER J.A.

     A-583-96

CORAM:      STRAYER J.A.

     LINDEN J.A.

     ROBERTSON J.A.

B E T W E E N:

     THE ATTORNEY GENERAL OF CANADA

     Applicant

     " and "

     NIKE CANADA LTD.

     Respondent

     REASONS FOR JUDGMENT

     (Delivered from the Bench at Ottawa

     on November 26, 1996)

STRAYER J.A.

     We are in agreement that this application must be dismissed.

     We accept and follow the conclusion of this Court in the Fibreglass Pipe Insulation case (Director of Investigation and Research v. Canadian International Trade Tribunal et al¹) which, in dealing with a problem of disclosure also involving sections 44 to 48 of the Canadian International Trade Tribunal Act, concluded that those sections constitute a complete code with respect to disclosure of confidential information in proceedings before the Tribunal. While these sections might have been more clearly worded, we believe that subsection 45(3) sets out the only conditions under which information provided by one party and designated by it as confidential can be disclosed to another party. Subsection 45(3) provides as follows:

45.(3) Notwithstanding subsection (1), information to which that subsection applies that has been provided to the Tribunal in any proceedings before the Tribunal may be disclosed by the Tribunal to counsel for any party to those proceedings or to other proceedings arising out of those proceedings for use by that counsel only in those proceedings, subject to such conditions as the Tribunal considers are reasonably necessary or desirable to ensure that the information will not, without the written consent of the person who provided the information to the Tribunal, be disclosed by counsel to any person in any manner that is calculated or likely to make it available to

(a)      any party to the proceedings or other proceedings, including a party who is represented by that counsel; or

(b)      any business competitor or rival of any person to whose business or affairs the information relates.2

That subsection only contemplates disclosure of confidential information to counsel on conditions imposed by the Tribunal which will, in the absence of consent of the person who originally provided that information, prevent its disclosure to any party (including counsel's client) or to any business competitor. The condition imposed by the Tribunal Rules is that counsel for the Attorney General, acting for the Deputy Minister of National Revenue, sign an undertaking accordingly. We believe this is fully authorized by subsection 45(3) and that counsel for the Attorney General must comply with the Tribunal's form of undertaking subject to the modifications to which counsel for the respondent is prepared to consent.

     In our view the provisions of subsection 45(1) do not indicate a general intention that confidential information should be made available to public servants, including counsel in the Department of Justice and the officials of the Department of National Revenue. It simply provides a safeguard to preserve confidentiality where such information happens to come into their hands, for example, as staff of the Tribunal. In this respect we adopt the reasoning of the Tribunal itself in the Fibreglass Pipe Insulation case.³

     The application will therefore be dismissed.

    

                                 J.A.

__________________

1      A-584-93, unreported judgment November 17, 1993.

2      R.S.C. 1985, c.47 (4th Supp.).

3      Decision of October 7, 1993, unpublished, p. 4.