Confidentiality in the Federal Court: Application Judge Has the Final Say

Public openness and access to material filed in Court are underlying principles of the judicial process, and these principles were addressed in a decision by Prothonotary Tabib in Shire Canada Inc. v. Pharmascience Inc., and the subsequent reversal on appeal by Justice Hughes.

In her decision, Prothonotary Tabib dismissed a motion brought by Pharmascience, on consent, to file IMS pharmaceutical sales data that had been purchased by Pharmascience specifically for litigation. As part of the contract between Pharmascience and IMS, Pharmascience had agreed to seek the Court’s permission to file the sales data confidentially. After serving an affidavit containing the IMS data on Shire Canada, Pharmascience brought the motion for an order allowing it to file the IMS data confidentially with the Court.

Prothonotary Tabib was critical of the approach taken by Pharmascience:

Having deliberately sought out and purchased information and bound itself to keeping it confidential without first ensuring that it would be permitted to file it confidentially, Pharmascience now comes to the court and argues that preserving its ability to respect a freely given undertaking of confidentiality is an important interest that outweighs the fundamental principle of open and accessible court proceedings, and preserving IMS’s ability to rely on such undertakings in order to be able to offer a for profit service also represents an important interest that should outweigh the principles of open and accessible court proceedings. Pharmascience’s motion is ill-founded in fact and in law, and is dismissed.

Prothonotary Tabib considered the criteria for a confidentiality order set out by the Supreme Court of Canada in Sierra Club and found that IMS and Pharmascience did not have a reasonable expectation of the information being kept confidential since the IMS contract did “not require Pharmascience to forego filing the material in open court if its request is dismissed by the Court.” Prothonotary Tabib also considered the other two criteria set out in Sierra Club, whether the risk of harm was to an important interest, and whether that risk was grounded in the evidence. Prothonotary Tabib found that the potential loss of IMS sales due to publication of the data was not one that met the test for an important interest, and that Pharmascience was not at risk of breaching a confidentiality agreement with IMS if its motion did not succeed. On that basis she held that Pharmascience had failed to meet its burden, and dismissed the motion.

Before Justice Hughes, IMS was granted leave to intervene in the appeal by providing written and oral submissions. Justice Hughes found that the reasons of the Case Management Judge were not based on adequate information or representations. Having considered IMS’ argument, Justice Hughes held:

The Case Management Judge should have requested an amendment to the draft Order such that the Order does not say that the Court has found the information and documents to meet the criteria for confidential information. The Order should say only that Pharmascience asserts that the information and documents meet the criteria. Thus a challenge may be raised at a later date and the Judge hearing the application will be free to make a determination if needed, at that time, as to whether the information and documents are truly confidential or not.

In the result, Justice Hughes issued an amended Confidentiality Order and set aside the Order of Prothonotary Tabib.

A copy of Prothonotary Tabib’s Order may be found here.

A copy of Justice Hughes’ decision may be found here. A copy of the amended Confidentiality Order may be found here.