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ARTICLE · 04 APRIL 2019

There And Back Again - Protective Agreements In The Federal Court

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A recent decision of the Federal Court has once again shifted the approach a party must take to keep their documents and information confidential during litigation.

CanadaLitigation, Mediation & Arbitration
Alexander Camenzind
Alexander Camenzind
Ben Pearson
Ben Pearson
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A recent decision of the Federal Court has once again shifted the approach a party must take to keep their documents and information confidential during litigation.

In Canadian National Railway Company v. BNSF Railway Company, 2019 FC 281 both parties sought a protective order defining the various restrictions on their confidential documents that were to be disclosed to the other side. Justice Locke dismissed the motion on the basis that it was unnecessary; the parties could instead enter into a protective agreement. As there was no disagreement between parties on how to handle the confidential information, the Court's involvement was deemed unnecessary.

This case is yet another shift in the Federal Court's approach to the protection of confidential information disclosed during litigation. It appears that the Court's recent preference towards Protective Agreements, rather than Protective Orders issued by the Court on consent, may be here to stay.

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