The IP legal community had been waiting for the Federal Court of Appeal to clarify the conflicting positions adopted by the Federal Court on the issuance of protective orders in IP cases. The opportunity arrived at last in March 2019 when Canadian National Railway (CN) appealed a ruling of the Federal Court which had dismissed a motion brought jointly by the parties for the issuance of such a protective order. The Intellectual Property Institute of Canada (IPIC) also intervened in the appeal to make representations on behalf of the IP legal community. The appeal was heard on December 16, 2019.
On February 17, 2020, the Federal Court of Appeal issued its judgment granting CN’s appeal (2020 FCA 45), reaffirming the long-established practice of granting protective orders to parties involved in intellectual property litigation before the Federal Court in Canada. This reinforced an important feature of the discovery process before the Federal Court, ensuring that Canada remains an attractive option for high-stake IP litigation. François Guay, Jean-Sébastien Dupont and Julie E. Larouche successfully represented CN in this mater.