Public Courts and Commercial Secrets: A Balancing Act

Originally published in the Commercial Litigation Review, Volume 8, Number 3.

This article explains the different types of orders available to protect commercial secrets, and sets out the appropriate test and limitations of each providing valuable insight for all litigators, and those who face litigation.

Commercial parties involved in civil litigation are often concerned about the possibility that confidential and commercially sensitive information will become public, damaging their commercial interests. There is an inherent tension between the need to protect commercial secrets during civil litigation and our open court system. The Ontario Courts of Justice Act [CJA], R.S.O. 1990, c. C.43, and Rules provide some protection, but it is not automatic and can be difficult to obtain.