Canadian National Railway Company v. BNSF Railway Company, 2020 FCA 45

Justice Gleason; Justice Boivin; Justice Rivoalen - 2020-02-17

Read full decision. Automatically generated summary:

This appeal accordingly concerns the test applicable in determining the availability of protective orders—i.e., under what criteria such an order should be granted. Federal Court jurisprudence is inconsistent in this regard and the present appeal offers an opportunity to provide some much-needed guidance. ... In short, there is no justification for applying the same onerous Sierra Club test that is applied to confidentiality orders to protective orders. ... Protective orders undoubtedly remain pertinent and useful for intellectual property litigants and there is no justification, legal or otherwise, for stifling this long-standing practice. Not only do protective orders provide “structure and enforceability in ways the implied undertaking”, or private agreements, for that matter, cannot, but they are also consistent with “modern, efficient, effective and proportional litigation” ... They further add support to the Federal Court’s efforts over the past decades to streamline complex intellectual property litigation and ensure that the system remains efficient. ... As such, a party who wishes to have the Court treat documents subject to the hybrid order as confidential must bring a motion pursuant to Rule 151 of the Federal Courts Rules forthwith after filing the documents. It is at this juncture, when the Court is being asked to seal documents, that the Sierra Club test set out at paragraph 20, above, is engaged.

Decision relates to:


Canadian Intellectual Property