FCA revives longstanding test for protective orders in IP disputes

On February 17th, the Federal Court of Appeal re-clarified that protective orders ought to be granted based on the test set out in AB Hasslei.e., when “the moving party believes that its proprietary, commercial and scientific interests would be seriously harmed by producing information upon which those interests are based.” It held that the application of the more restrictive test for confidentiality orders set out in Sierra Club was not warranted.

Canadian National Railway Company v BNSF Railway Company, 2020 FCA 45 (CanLII).

Ontario decision suggests corporation can sue for breach of privacy

On February 19th, the Ontario Superior Court of Justice declined to strike a pleading that alleged a company unlawfully interfered with a competitor’s economic relations by receiving confidential information about a client (BC Cancer) that was sought after by both organizations. The Court held that the pleading was sustainable because BC Cancer had an arguable claim against the recipient organization based on the “intrusion upon seclusion” tort, suggesting that the tort is available to natural persons and corporations. As stressed by the Court, on a motion to strike a court errs on the side of permitting a novel but arguable claim to proceed to trial.

Fundraising Initiatives v Globalfaces Direct, 2015 ONSC 1334 (CanLII).