Confidential evidence – The Superior Court refuses to grant a confidentiality order, an order for the trial to be held in camera or an order sealing documents relating to foreign currency exchange fees; by Marie-Louise Delisle
(23/10/2008)
Marcotte v. Banque de Montréal (June 20, 2008), Montreal 500-06-000197-034 and 500-06-000223-046 (S.C.)
This decision arises from a class action instituted by credit card holders to whom transaction fees were charged by the Defendant financial institutions in relation to foreign currency transactions.
In their motion, the financial institutions were seeking to protect the confidentiality of the information relating to monies generated from the foreign currency exchange fees, which are in dispute, as well as of the documents provided by Visa and MasterCard relating to these exchange fees since they are subject to a confidentiality agreement.
Based on the Canadian Charter and the Quebec Charter’s guarantees of freedom of speech, freedom of the press, and an impartial public hearing, as well as on recent decisions rendered by the Supreme Court on this issue, the Superior Court concluded that it is up to the financial institutions to demonstrate that:
a) the orders sought are necessary to prevent a serious risk to an important commercial interest, such as:
a true risk, well supported by the evidence, which greatly threatens the commercial interest invoked;
a commercial interest which transcends the parties claiming the protection and which can be defined in terms of public interest to confidentiality;
b) the favourable effects of the orders sought, including the right to a fair trial, prevail over its prejudicial effects, including the public’s right to the publication of judicial hearings;
In this case, the financial institutions demonstrated that they were seeking to protect a commercial interest since they compete with each other, and that the protection of this commercial interest also applies to third party competitors not party to this instance. The Superior Court stated that this constituted a purely private interest, which takes us away from what the Supreme Court qualifies as “an interest which can be defined in terms of public interest to confidentiality”. The Court considers that it is simply a question of information which, if disclosed publicly, could potentially harm the Defendants’ commercial interests and make them lose business opportunities or market share. This type of commercial interest distinguishes itself from a public interest to confidentiality. Therefore, no proof of real and serious risk, which would gravely threaten an important commercial interest, was presented.
The Court arrived to the same conclusion regarding the Visa and MasterCard documents indicating that these documents also involved the protection of a purely private commercial interest. Consequently, a confidentiality agreement with a third party does not automatically result in the necessity for a confidentiality order. If this were the case, the recognized constitutional principle pertaining to the publication of judicial debates could be too easily avoided.
This decision was not appealed.
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