This was an Application, by consent of the parties, for a restricted Court access Order to seal an Affidavit. The Affidavit had been prepared by the Plaintiff in response to an Application brought by the Defendant. The documents attached to that Affidavit had been listed in the Defendant’s Affidavit of Records and made available to the Plaintiff. The Defendant expressed concerns that that documents attached to the Affidavit could affect the reputation of the Defendant if obtained by the public. The Defendant pointed out that these documents had been made available to the Plaintiff pursuant to Rule 5.33, as a requirement of the litigation process and subject to the confidentiality protection of Rule 5.33.

The Court indicated that Rule 5.33 codifies the common law implied undertaking that prohibits the use of Discovery evidence except for the purposes for which it was produced. Strekaf J. highlighted, however, that once documents are filed on the Court record, they are, absent any restricted Court access Order, available to the public. In other words, the filing of an Affidavit outside the scope of Rule 5.33 may remove the confidentiality that otherwise attached to the contents of that Affidavit.

Because Rule 5.33 does not protect documents outside the scope of Rule 5.33, a separate legal test known as the Dagenais/Mentuk test (Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835; R v Mentuck, 2001 SCC 76) had to be satisfied before Strekaf J. would grant the confidentiality Order. That test is the following:

A confidentiality order … should only be granted when:

(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the contest of litigation because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this contest includes the public interest in open and accessible court proceedings.

The Dagenais/Mentuk test was not satisfied in this case, and the Application was rejected.