Canada: Protective Orders In Trademark Cases

Canadian National Railway Company v. BNSF Railway Company, 2020 FCA 45

Historically, the Federal Court of Canada (where most IP litigation is heard) has been issuing so-called protective orders covering confidential information, generally on consent of both parties. These orders are enforceable by courts, including through contempt proceedings. Protective orders usually include information that the parties designate as "confidential," and, for highly sensitive material, the parties can designate "Counsel's Eyes Only Information." There are limits on the number and identity of persons who can access such information, and persons with access must review and undertake to adhere to the terms and conditions of the orders. Over the years, the Federal Court and IP practitioners had developed a template for use in seeking/granting protective order protection, and orders were more or less routinely granted. More recently, however, some members of the Federal Court have been