Graesser j

5.33: Confidentiality and use of information
5.6: Form and contents of affidavit of records

Case Summary

The Plaintiff (Gaw) sought production of a copy of a tender that one of the Defendants (Precision) submitted to a Municipal District for paving and other roadwork in 2008. Precision resisted the Application on the basis that the tender form was irrelevant, or that it contained confidential and proprietary information. Gaw’s Action was for the amount allegedly owed to his company arising out of a subcontract on the roadwork.

Justice Graesser stated that production of records is governed by Rule 5.6. A party is required to produce those records that are relevant and material to the issues in a lawsuit, subject only to a few exceptions such as privilege. Confidential or proprietary interests are not shielded from production, but in appropriate circumstances, measures can be taken to protect confidentiality while still making meaningful disclosure in litigation. While Precision argued that the tender form was confidential and proprietary, Graesser J. observed that confidentiality was not a basis to resist disclosure of otherwise relevant and material records. Records produced through the mandatory disclosure rules are protected by the implied undertaking of confidentiality, which is codified in Rule 5.33. Proprietary information is not exempted from mandatory disclosure. Here, there was no evidence that the tender form actually contained proprietary information or that Gaw could use anything in it to compete with Precision in the future. Justice Graesser ordered the production of the tender form to Gaw.

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