Eli Lilly and Co. v. Interpharm Inc.
A-260-93
McDonald J.A., Heald J.A. (dissenting)
27/7/93
11 pp.
Appeal from order granting leave to use in another proceeding name and location of manufacturer and supplier of Fluoxetine Hydrochloride and from order sealing defendants' supplementary statement of fact and law -- Patent infringement action -- Plaintiffs obtaining interim injunctive relief in form of Anton Pillar order, ordering disclosure of defendants' sources of supply of drug -- Judge reviewing Anton Pillar order directing preservation order to apply to certain information in affidavits supporting request for confidentiality -- Further protective order issuing on consent wherein affidavits containing name, location of supplier and description of process to be sealed -- Plaintiffs applying for interlocutory injunction preventing sale of drug pending outcome of patent infringement action -- Defendants filing supplementary statement of fact and law containing name of supplier and references to nature of process employed in response -- Location of defendants' supplier revealed in reasons denying injunction -- Inadvertently supplementary statement of fact and law filed unsealed on court record contrary to earlier orders directing such information be kept confidential -- Appeal dismissed -- Although implied undertaking information obtained on discovery to be used only for purposes of litigation for which obtained (R. v. Ichi (1991), 40 C.P.R. (3d) 119 (F.C.T.D.)), no implied undertaking attaching to materials filed with court voluntarily by way of affidavits or in statements of fact and law -- Sealing order applied to documentation touching directly on issues of infringement, including specifics of formulas used, matters for determination by trial judge -- Permitting information to again be public might be prejudicial to fair hearing -- No evidence unsealed information discovered or used by anyone including litigants during time public having access to it -- Heald J.A. (dissenting) holding Motions Judge erred in sealing supplementary statement of fact and law as order effectively making secret information which is no longer secret, is common knowledge and in public domain -- Unjust to place plaintiffs in less advantageous position than members of public who perused public record and obtained copies of documentation when no restriction on availability to public -- Order should not be allowed to stand.