Sealing The Record? Not As Easy As You Think

It is not unusual for a party in commercial litigation to want a sealing order, particularly when commercially or competitively sensitive information is going to be produced. In 2002, the Supreme Court of Canada’s decision in Sierra Club of Canada v. Canda¹ set out a framework to determine when a sealing order is appropriate. For almost the next 20 years, sealing orders were not a matter of controversy and were routinely granted when dealing with commercially sensitive information. It was always advisable to seek the least intrusive order and redact information instead of completely sealing documents.² Nonetheless, counsel could confidently advise their clients that any commercially sensitive or confidential information would likely be protected from disclosure in court proceedings.