T-577-87
The Lubrizol Corporation and Lubrizol of Canada,
Limited (Plaintiffs)
v.
Imperial Oil Limited and its subdivision Paramins
(Defendant)
INDEXED AS: LUBRIZOL CORP. v. IMPERIAL OIL LTD. (T.D.)
Trial Division, Giles A.S.P.—Toronto, August 22
and September 13, 1990.
Practice — Protective order designating as confidential cer
tain documents required to be produced for inspection — (1)
Application to extend those entitled to access to documents to
include lawyers in foreign litigation on similar subject-matter
— Public policy requiring protection of right to confidential
ity, except to extent required to do justice at trial — Implied
undertaking confidential documents to be used only for pur
poses of action notwithstanding protective order — Party not
released from implied undertaking — (2) Application to sub
ject portions of trial transcript to protective order — Conflict
of principles protecting privacy and requiring trials to be
public — Transcript prepared for judge and parties — Such
uses not limited by confidentiality order — Invasion of priva
cy, required for fair trial and for trial to be seen to be fair,
must be limited — Documentary or oral evidence produced
under protective order in similar position to discovery evidence
produced subject to undertaking of confidentiality — Volun
tary production constituting possible waiver of confidentiality
where only implied undertaking — Confidentiality applies to
evidence voluntarily produced herein as subject to both
implied undertaking and protective order — Order permitting
party to designate evidence confidential.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663.
CASES JUDICIALLY CONSIDERED
APPLIED:
Home Office v. Harman, [1983] 1 A.C. 280 (H.L.).
CONSIDERED:
Scott v. Scott, [1913] A.C. 417 (H.L.).
COUNSEL:
Peter E. J. Wells and Brad Hint for plaintiffs.
Douglas Deeth and Anthony Prenol for
defendant.
SOLICITORS:
Ridout & Maybee, Toronto, for plaintiffs.
Blake, Cassels & Graydon, Toronto, for
defendant.
The following are the reasons for order ren
dered in English by
GILES A.S.P.: The motion before me after the
trial of this action was:
1) to subject certain portions of the transcript of
the trial to the protective order issued before trial
and;
2) to expand the number of those entitled to see
the documents subject to the protective order to
include certain foreign lawyers who were counsel
to the parties or the parents of the parties who
happen to be involved in foreign law suits involving
similar subject-matter.
I indicated to counsel that in my view the dis
putes could be resolved by looking at the basic
principles involved and devising orders which did
the least damage to those principles. With respect
to each part of the motion, fundamental principles
were apparently in conflict.
Dealing first with the second part of the motion.
The documents subject to the protective order
were the parties' confidential documents which
public policy requires that the party be entitled to
keep confidential. However, the party is required
by the Rules [Federal Court Rules, C.R.C., c.
663] to produce for the inspection of other parties
any document which may relate to any matter in
question in the cause, whether or not the docu
ments are private confidential documents of the
party. The reason for the rule requiring production
of confidential documents is that justice requires
that all relevant evidence be before the Court and
also that an opposing party not be surprised at
trial. Documents produced in accordance with the
Rules benefit from the implied undertaking of
counsel discussed in Home Office v. Harman,
[1983] 1 A.C. 280 (H.L.) that documents so pro
duced will be used only for the purposes of the
action. This is- because the sole justification for
requiring the production of confidential documents
is the possible use of the documents in the action.
The implied undertaking exists notwithstanding
the existence of a protective order which may
supplement or modify the implied undertaking.
Public policy requires the continued protection of a
person's right to keep his documents confidential
and to the extent that it is unnecessary for the
purpose of doing justice at trial, such right to
confidentiality should not be further infringed
upon. Counsel here did not attempt to obscure the
fact that they wished the confidentiality order
amended to permit the use of confidential informa
tion for the purposes of another action or potential
action. In my view, there is no reason to release the
party or its solicitors from the implied undertaking
or the confidentiality order in this action because
of the existence or potential existence of a foreign
action. Refusing to amend the confidentiality
order in this action does not preclude any applica
tion which may be made with specific reference to
a foreign action.
With regard to the motion to cause certain
portions of the transcript of the trial proceedings
in this action to be made subject to the protective
order, a different principle has to be considered.
That principle is that trials should be public. As
has been pointed out in the cases, (e.g. Scott v.
Scott, [1913] A.C. 417 (H.L.)) the public interest
in open trials is not for titillation or satisfaction of
curiosity but is to enable a member of the public to
see that justice was properly administered. For
that purpose an interested member of the public
could have attended the trial and would have been
aware of everything in the transcript. At the trial
in this cause confidential information was given in
evidence at an open trial and thus potentially came
to the attention of the public. To the extent that
confidential information came to the attention of
the public the confidentiality would be lost, but, as
pointed out in Home Office v. Harman, that does
not relieve the parties of their implied undertak
ings. Neither, in my view, does it relieve the
parties of their obligations under the confidential
ity order. The transcript is prepared for the benefit
of the judge and of the parties for the purposes of
the trial and any appeals and it is not, unless so
ordered, made a part of the file. It is not prepared
for public use. It may well be that for the purposes
of appraising the fairness of the trial a member of
the public should be allowed access to the tran
script. There is, however, no principle which
requires that confidential information be published
for any other purpose. In Home Office v. Harman
a confidential document had been substantially
read in Court. Nevertheless counsel was not en
titled to release the document to the public or
more particularly to persons seeking to use the
information to embarrass the party whose infor
mation it was. In Home Office v. Harman refer
ence is made to the possible anomaly that existed
because a newspaper reporter could obtain a tran
script from the official reporter of the very docu
ment which counsel, because of the undertaking,
could not provide to the reporter. I note that on
page 304 of the report, Lord Diplock states in part:
The mechanical recording of counsel's speeches forms no part
of the official shorthand note required to be taken under
R.S.C., Ord. 68, but transcripts of mechanically recorded
speeches are obtainable from the official shorthand writers, not
as a matter of right or at officially authorised charges, but as a
matter of private bargain with the shorthandwriters.
It would appear then that a member of the public
has no right to obtain a transcript which an order
subjecting the transcript or parts of it to the
confidentiality order would remove. In Harman,
oral evidence was produced from a confidential
document and the document remained subject to
the undertaking. Here, confidential information
has been given in oral evidence and a document
containing such evidence has been or may be
produced. Subjecting that document to the confi
dentiality order would in no way limit the proper
use of that document by counsel or the parties.
The invasion of privacy required for the purposes
of the fair trial of the action and for the purpose
that that trial be seen to be fair, must if possible,
be limited. In discussing the requirements for
public trials, Lord Roskill said, at page 326 of
Harman:
The purpose of the requirement of open justice was the avoid
ance of abuse of any kind which can too often be inherent in
secret justice. That purpose was amply safeguarded by hearing
in open court, without the subsequent making available of any
documents read in open court for a purpose which had no
immediate concern with the litigation in question.
My Lords, there can be no doubt that the interests of justice
must always require the giving of the fullest discovery however
reluctant a particular litigant may be to reveal to his enemy his
own private documents. At present when he does this he can
rely upon the undertaking as giving him substantial protection
against wider publicity than is necessary for the proper conduct
of the trial in open court. But if, as the appellant contends, the
undertaking determines once any document is read in open
court, that protection is then by the very act of reading lost for
all time. This must militate against full and frank discovery.
My Lords, on practical grounds, too, were the continuance or
termination of the undertaking to depend upon whether or not
there was a reading in open court, which as already stated may
to some extent be a matter of chance, an unfortunate situation
might arise with manoeuvring to ensure that particular docu
ments were or were not read aloud, irrespective of their actual
importance to the litigation, and some type of what might not
unfairly be called forensic poker might ensue. [Underlining
mine.]
In my view, evidence whether documentary or
verbal produced under a protective order is in a
similar position to discovery evidence produced
subject to the undertaking. Therefore, if a party
succeeds in having a document read in open court
and having that reading recorded and transcribed,
I do not see that the party should thus be able to
relieve himself of the confidentiality order or the
implied undertaking. This trial lasted several
weeks and the transcript must be voluminous.
Rather than leaf through it page by page I would
have been prepared to consider an application for
an order by which the transcript was sealed to be
used only for the purposes of an appeal, but sub
ject to the right of any person to apply for access
to the transcript for the purpose of preparing a
critical comment on the conduct of the case or any
other proper purpose.
Were the only matter to have been considered
the implied undertaking in Harman, it would be
necessary to scrutinize the transcript to ascertain
what evidence was voluntarily produced and there
fore whether any confidentiality in it should be
considered waived. In this case, however, there was
in addition to the implied undertaking, a confiden
tiality order which by its terms, in my view,
enables a party to claim confidentiality with
regard to documents and evidence voluntarily pro
duced. The order permits a party to designate
evidence as confidential and the claim of the appli
cant in this motion must be considered such a
designation. Because only certain pages of the
transcript were the subject of the motion before
me, I only ordered those pages to be subjected to
the confidentiality order. As a practical matter, if
no appeal is filed from the judgment at trial,
applying the confidentiality order to parts only of
the transcript may not cause any undue complica
tion. If, however, an appeal is filed and there is a
possibility of parts of the transcript being made
part of the public file and part, because of the
confidentiality order, having to be abstracted
therefrom and filed in sealed envelopes I would
suggest that counsel might move on consent for an
amendment to my order to require that the whole
transcript be sealed when filed for the purpose of
the appeal.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.