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- The applicants, Malcom Media Inc. and Luc Lemay, have requested that I order that some of the documents that Commission Counsel intend to file as evidence be kept confidential and not disclosed to anyone unless a confidentiality agreement is signed.
- In effect, the request amounts to a kind of no-publication order for these documents, which are the financial statements for a trust and corporations for which Mr. Lemay was the guiding spirit and principal stockholder. Mr. Lemay alleges that disclosure of these financial statements would be prejudicial to him vis-à-vis his competitors, his clients, his suppliers and potential purchasers of his companies.
- I have no doubt that the disclosure of this financial information would have a negative impact on the intentions and business interests of the applicants, and constitute an invasion of their privacy. However, this is a public investigation of considerable interest to the people of Canada. Non-disclosure of the financial position of the applicants in all its details would deprive Canadians of a source of information that could help them, and the Commission itself, acquire a better understanding of where the sponsorship money paid by the Government of Canada went.
- In Sierra Club of Canada v. Canada (Minister of Finance) [2002] 2 S.C.R. 522, Iacobucci J. in paragraph 53 of his reasons, summarized the rules to be followed when a litigant requests a confidentiality order, as follows:
- A confidentiality order under Rule 151 should only be granted when:
- such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
- 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 context includes the public interest in open and accessible court proceedings.
- In the following paragraphs he added that to constitute a serious risk to an important interest, the risk must be real and important, insofar as it is solidly substantiated by the evidence and poses a serious threat to the commercial interest in question.
- According to Mr. Justice Iacobucci, the interest in question cannot merely be specific to the party requesting the order but also one which can be expressed in terms of a public interest in confidentiality.
- This requirement in not met in this case. The public interest requires complete disclosure of the financial statements in question. Moreover, within the context of this Commission of Inquiry, freedom of expression, a fundamental right, must be respected and protected, even at the expense of private interests, particularly strictly commercial interests.
- For these reasons I dismiss the request.
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John H. Gomery, Commissioner
Dated at Montreal, April 13, 2005
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