“Section 137(2) of the Courts of Justice Act provides the jurisdiction to issue a sealing order:
A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.
Sealing orders are an exception rather than the rule. All courts and court documents in Canada are presumed to be open to the public. As Ferrier J. recently stated in Ontario Council of Hospital Unions v. Ontario (Minster of Health), (2007), 2007 CanLII 2689 (ONSC):
There is a heavy onus on anyone seeking to deny public access to court documents or proceedings. It must be demonstrated that it is necessary to deny public access in order to protect a value of “super-ordinate” importance”: Nova Scotia (Attorney General) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, p [1982] S.C.J. No. 1 at pp/ 185-87 S.C.R.
This is an important component of our constitutional right to freedom of expression contained in s. 2(b) of the Charter. The importance of this principle, and the plethora of Supreme Court of Canada cases stating it, was recently noted by my brother Strathy J. in Fairview Donut Inc. v. TDL Group Corp, 2010 ONSC 789 (CanLII), citing the Supreme Court of Canada’s decisions of Dagenai v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC); R. v. Mentuck, 2001 SCC 76 (CanLII); Vancouver Sun (Re.), 2004 SCC 43 (CanLII); and Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (CanLII).
The test for determining when the open court principle should give way to considerations of ‘super-ordinate importance” was set out by the Supreme Court of Canada in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII). Justice Iacobucci, speaking for the Court at para. 53, established a two part test:
A confidentiality order… 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.
Justice Iacobucci clarified the meaning of the phrase “important commercial interest” in paras. 55-56:
…In order to qualify as an “important commercial interest”, the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in confidentiality. For example, a private company could not argue simply that the existence of a particular contract should not be made public because to do so would cause the company to lose business, thus harming its commercial interests. However, if, as in this case, exposure of information would cause a breach of a confidentiality agreement, then the commercial interest affected can be characterized more broadly as the general commercial interest of preserving confidential information. Simply put, if there is no general principle at stake, there can be no “important commercial interest” for the purposes of this test. Or, in the words of Binnie J. in F.N. (Re), [2000] 1 S.C.R. 880, 2000 SCC 35 (CanLII), at para. 10, the open court rule only yields “where the public interest in confidentiality outweighs the public interest in openness”.
The important commercial interest cannot be one specific to the moving party. Rather, the moving party must establish an important commercial interest that is grounded in a broader public interest: see also Prendiville v. 407 International Inc., [2002] O.J. No. 2548, 24 C.P.C. (5th) 184 (S.C.J.) at para. 15.
In addition to the above requirement, courts must be cautious in determining what constitutes an “important commercial interest.” It must be remembered that a confidentiality order involves an infringement on freedom of expression. Although the balancing of the commercial interest with freedom of expression takes place under the second [para. 53] branch of the test, courts must be alive to the fundamental importance of the open court rule: see generally Muldoon J. in Eli Lilly and Co. v. Novopharm Ltd., (1994), 56 C.P.r. (3d) 437, [1994] F.C.J. No. 1141 (T.D.), at para 2.
Where the sealing order relates to the personal information of a child, the best interests of the child, is a value of super-ordinate importance that can override the open court principle: M.S.K. v. T.L.T, 2003 CanLII 27471 (ON CA) at para 10.”