Open Court Principle Means No Secret Proceedings If They Would Directly Affect A Competitor's Rights

Courts in Canada are presumed to be open and accessible to the public. Although a party's commercial interests can be protected, a court will not grant a confidentiality order if doing so would prejudicially affect a third party. A court can only cloak a proceeding in secrecy where necessary to prevent a serious risk to an important interest and the benefits of these orders outweigh the downsides. 

In a recent decision governed by unusual facts, a drug product manufacturer sought a confidentiality order with the effect of preventing a non-party co-developer-turned-competitor from learning about a court proceeding that could have affected the competitor's opportunity to enforce patents against the manufacturer. The Federal Court upheld the case management judge's decision refusing to allow secret-keeping and requiring the manufacturer to provide its competitor with information about the proceeding.