Sealing The Record? Not As Easy As You Think

It is not unusual for a party in commercial litigation to want a sealing order, particularly when commercially or competitively sensitive information is going to be produced. In 2002, the Supreme Court of Canada’s decision in Sierra Club of Canada v. Canda¹ set out a framework to determine when a sealing order is appropriate. For almost the next 20 years, sealing orders were not a matter of controversy and were routinely granted when dealing with commercially sensitive information. It was always advisable to seek the least intrusive order and redact information instead of completely sealing documents.² Nonetheless, counsel could confidently advise their clients that any commercially sensitive or confidential information would likely be protected from disclosure in court proceedings.

In 2021, the Supreme Court of Canada refined the test for a sealing order in Sherman Estate v. Donovan.³ The Court emphasized the “openness principle” in court proceedings and stressed that the test for a sealing order is a strict test. It appears that courts, particularly in Ontario, are listening to the Supreme Court of Canada and that sealing orders are far from a sure thing even with evidence that information at issue is sensitive or confidential.

Rogers Communications Inc. v Glentel Inc. et al.⁴ is a recent case that demonstrates the trend of sealing orders becoming more difficult to obtain. It reinforces the importance of the open court principle and emphasizes the high threshold for obtaining a sealing order.

Rogers Communications Inc. (“Rogers”) and BCE Inc. (“BCE”), two major telecom competitors, became involved in a dispute over how a Rogers‑branded Mastercard was sold, distributed and marketed through Glentel Inc. (“Glentel”), their jointly owned retail business. Rogers alleged that Glentel breached its agreement by how it promoted the Rogers Mastercard. The parties chose to resolve the dispute through private arbitration, which allowed them to keep the process confidential. The arbitrator issued an award in December 2024. Rogers was dissatisfied with the result and appealed to the Superior Court.

At the outset, Rogers asked for a broad sealing order to keep most of the records private. It sought to seal the distribution agreements, the arbitration transcript, large portions of the arbitrator’s decision and internal training documents. Bell and Glentel did not oppose the request, and no media organizations challenged it.

Nonetheless, Justice Schabas dismissed the motion. He held that sealing orders are exceptional and require strong evidence under the strict test set out in Sherman Estate. Under that test, a party seeking a sealing order must show that public access poses a serious risk to an important public interest, that the order is necessary because no reasonable alternatives exist to protect the serious risk and that the benefits of the order outweigh its harmful effects on transparency. The fact that the order is unopposed is irrelevant. Similarly, the fact that the proceedings arose from a private arbitration did not alter the open court principle.

Regarding the distribution agreements, Rogers did not show a real and serious risk to an important public interest if the documents were disclosed. Rogers relied primarily on the fact that the agreements were confidential and that the parties treated them as such. Prior to Sherman Estate, a court would likely have accepted this argument. Justice Schabas determined that this was not enough. He held that the party seeking the order must also establish that the disclosure could reasonably harm its commercial interest or those of others. Previously, courts often assumed that there would be harm from the release of confidential documents. Justice Schabas concluded that the effect of the order sought would be an almost completely private hearing and much of the arbitrator’s award and all the transcripts would need to be sealed.

Although the training documents were more sensitive and met the first branch of the Sherman Estate test, Rogers did not show that they were necessary for the appeal, so Justice Schabas did not grant a sealing order.

Therefore, parties cannot assume a sealing order will be granted, even when dealing with confidential documents. It is critical to have persuasive evidence on all elements of the test for a sealing order, especially harm from the public release of the information. It is also important to, as much as possible, seek a less restrictive order, such as one permitting redactions of certain well-defined and limited types of information. It is clear that courts in Ontario will be erring on the side of protecting the open court principle and commercial parties better be prepared for this.

Special thanks for summer associate, Allison Wang, for contributing to this article.

Footnotes

1 Sierra Club of Canada v. Canada, 2002 SCC 41.

2 Redactions require a “public” record be filed for general public access, meaning this is normally more work intensive than obtaining sealing orders over particular documents.

3 Sherman Estate v. Donovan, 2021 SCC 25 [Sherman Estate].

4 Rogers Communications Inc. v Glentel Inc.et al., 2026 ONSC 1280.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.