Protective order was not subject to stringent criteria set out by SCC for confidentiality order

Plaintiff brought patent infringement action. Patent claimed methods of detecting atypical electricity consumption, primarily for identification of marijuana grow operations. Mandate of defendant hydro company was to provide reliable, affordable and clean electricity throughout British Columbia, and it used multiple software and hardware solutions to monitor, visualize and analyze performance of its electricity grid and to detect theft of electricity. Fact hydro company had theft detection program was publicly known, but details of program and its revenue assurance systems were highly confidential, and it was very concerned that public disclosure of this confidential information would enable criminals to avoid detection and perpetuate theft of electricity and illegal activities. Hydro company would be required to produce proprietary and sensitive technical and business documents and information as part of its discovery obligations in this action. Hydro company brought motion for protective order providing for protection and maintenance of claims of confidentiality in certain materials to be disclosed and exchanged between parties. Motion granted. There was great uncertainty regarding proper test to be applied in determining whether protective order should be granted. Protective order was not subject to stringent criteria set out by Supreme Court of Canada for confidentiality order. Criteria to be considered for granting confidentiality order or protective order clearly overlapped, but they were not same. Test for protective order focused on belief of moving party as to confidentiality of information and likelihood that its non-confidential release could cause harm to party's interests. Based on uncontroverted evidence of hydro company, some of documents that were going to be produced by it on discovery were likely to be confidential and commercially sensitive, they were accumulated with reasonable expectation of being kept confidential, and they had been treated at all relevant times as confidential. On balance of probabilities, hydro company's proprietary and commercial interests could reasonably be harmed by disclosure of documents. Protective order would assist parties in orderly and expeditious conduct of litigation. Test for issuance of protective order was met.

dTechs EPM Ltd. v. British Columbia Hydro & Power Authority (2019), 2019 CarswellNat 1480, 2019 CarswellNat 2022, 2019 FC 539, 2019 CF 539, Roger R. Lafrenière J. (F.C.).

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