CITATION: Canplas Industries Ltd. v. McKee, 2012 ONSC 5206
DIVISIONAL COURT FILE NO.: 275/12
DATE: 20120914
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CANPLAS INDUSTRIES LTD.
Plaintiff
(Defendant to the Counterclaim)
(Appellant)
– and –
JIM MCKEE and AIRTURN PRODUCTS INC.
Defendants
(Plaintiffs by Counterclaim)
(Respondents)
Marc D. D. Whiteley and John Russo, for the Plaintiff
Kenneth D. Hanna, for the Defendants
HEARD at Toronto: September 14, 2012
lax j. (ORALLY)
[1] This is a dispute between two competitors who manufacture and distribute roofing ventilation products. It is being litigated in an action in the Superior Court and also in the Federal Court.
[2] The plaintiffs brings a motion for leave to appeal the decision of K. Campbell J., affirming the decision of Master Abrams granting a confidentiality order that included a “for counsel’s eyes only” provision for some documentation.
[3] The plaintiff had earlier consented to an order in the parallel litigation in the Federal Court (but without this provision) and resists the requested order.
[4] In her endorsement at para. 8, Master Abrams stated that she had regard to the considerations that militate against the relief sought by the defendants and referred to the paragraph of the plaintiff’s factum that summarized those. She found these considerations were all “trumped by the fact and nature of the confidentiality provisions already agreed to in parallel proceedings”. She also found that the requested order was less restrictive than the order the plaintiff had consented to in Federal Court.
[5] Master Abrams accepted the defendant’s submission that without a confidentiality order in the Superior Court proceedings, the plaintiff would be able to obtain the defendant’s confidential information in those proceedings that it is unable to obtain in the Federal Court proceedings.
[6] On appeal, K. Campbell J. fully reviewed the reasoning and conclusions of Master Abrams that supported the order she granted. He properly applied the standard for appellate review. His reasons, as well as those of Master Abrams are clear, cogent and in my view, correct. Both Courts relied on Apotex Inc. v. Wellcome Foundation Ltd., 1993 17595 (FC), [1993] 51 C.P.R. (3d) 305 (F.C.T.D.). This is the only case the parties located where the same set of facts arise. In Apotex, the Court noted that where parallel litigation was underway, there was merit in having reasonably comparable protective orders. Otherwise, as Master Abrams noted, to refuse the orders sought would permit the plaintiff to “do an end run” around the Federal Court orders and obtain the defendant’s confidential information in the Superior Court proceedings.
[7] The nub of the argument advanced by the appellant is that there are conflicting decisions as to the evidentiary standard required for granting a confidentiality order which contains provisions permitting prospective classification, prospective sealing of court documents and that restricts disclosure to counsel’s eyes only. In paragraph 1 of its factum on this motion, it asks whether, as a prerequisite to bringing a motion for such an order, there should at least be one specific example of materials sought to be protected provided to the Court for scrutiny prior to granting the order?
[8] The appellant relies on a series of cases that it says give rise to conflicting decisions on this question. See for example, Boehringer Ingelheim (Canada) Ltd. v. Bristol-Myers Squibb, Canada Inc., Novopharm Ltd. v. Glaxo Group Ltd., and Levi Strauss & Co. v. Era Clothing Inc. These cases were all decided before the important decision of the Supreme Court of Canada in Sierra Club of Canada, 2002 SCC 41, [2002] 2 S.C.R. 522. In my view, these decisions are simply examples of discretionary orders that have led to different results, but if I am wrong about this and they do present conflicting authorities, any conflict in the authorities has now been resolved by Sierra Club. If it was not clear before, it is now clear that there is no requirement as a matter of law that the Courts scrutinize the actual documents before granting a confidentiality order as long as the court is provided with an adequate description of the kind and class of documents sought to be protected. See, for example, Sierra Club at paras. 19, 25 and 73.
[9] The appellant has not satisfied me that there are any conflicting decisions that require the attention of the Divisional Court and there is no reason to doubt the correctness of the decisions below.
[10] The motion for leave to appeal is therefore dismissed.
COSTS
[11] I endorse the Motion Record, “For oral reasons, motion for leave to appeal is dismissed with costs to the responding parties as agreed in the amount of $7,500.00, all inclusive, payable within thirty days.”
LAX J.
Date of Reasons for Judgment: September 14, 2012
Date of Release: September 21, 2012
CITATION: Canplas Industries Ltd. v. McKee, 2012 ONSC 5206
DIVISIONAL COURT FILE NO.: 275/12
DATE: 20120914
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LAX J.
BETWEEN:
CANPLAS INDUSTRIES LTD.
Plaintiff
(Defendant to the Counterclaim)
(Appellant)
– and –
JIM MCKEE and AIRTURN PRODUCTS INC.
Defendants
(Plaintiffs by Counterclaim)
(Respondents)
ORAL REASONS FOR JUDGMENT
LAX J.
Date of Reasons for Judgment: September 14, 2012
Date of Release: September 21, 2012