Canada: R.I.P. Consent Protective Orders

Last Updated: October 11 2017
Article by Marc Crandall and Michael Crichton

Most Read Contributor in Canada, October 2018

In a sweeping change to Federal Court practice, Prothonotary Tabib in LFOW v Soldan Fence2017 FC 858 concluded that “the Court ought no longer to routinely issue protective orders on consent of the parties.” This decision likely marks the end of the routine consent orders that govern the treatment of confidential documents and information during discovery.


In recent years, Federal Court practice and jurisprudence has developed a dichotomy between “Protective Orders” and “Confidentiality Orders”. The former primarily deal with governing confidentiality obligations and procedures between the parties in a proceeding. The latter deal with maintaining confidentiality over documents and information filed with the Court.  In the absence of a Confidentiality Order, materials filed in Court would otherwise be made public.

As had become common practice in the Federal Court, the parties in LFOW v Soldan Fence made an informal request, on consent, for a protective order in the form agreed to by the parties. Following the request, the Court requested written submissions and a hearing on the matter, and ultimately decided that it should not issue a protective order. 

The motivation behind the change

A central finding of the Court was that matters concerning how confidential documents and information are to be handled during discovery are by and large matters between the parties and need not involve the Court. The Court found that its already burdened and limited resources should not be used where a viable alternative is available without the need to implicate the Court. The Court’s view was that, if the parties wish to enter into any specific obligations beyond those covered by the implied undertaking rule, then the preferred method for doing this is by way of a private agreement between the parties.

A secondary consideration was the apparent perception that protective orders were being misused, either by inadvertence, ignorance or negligence. For example, the Court made note of prior instances in other court proceedings where documents were filed in Court under seal “pursuant to the protective order” in the proceeding when no corresponding confidentiality order had been granted or was being appropriately sought notwithstanding the dichotomy described above.

The implied undertaking rule

Litigants and their counsel will, however, take comfort in the Court’s extensive description and summary of the common law doctrine known as the implied undertaking rule. The Court noted that “[the] vast majority of the substantive provisions of typical protective orders are already covered by the common law doctrine of the implied undertaking rule.” Specifically, the Court found that the Rule already:

  • includes all documentary productions, as well as information disclosed in oral discoveries;
  • restricts the parties' use of discovery information to the purposes of the litigation and no other purpose;
  • protects information disclosed during discovery even if no specific designation has been made, and regardless as to whether or not it is marked as "confidential";
  • provides that a waiver may be granted by the disclosing party or the Court;
  • requires parties to advise third parties to whom they disclose discovery information of the existence and strictures of the implied undertaking rule;
  • excludes information that was lawfully obtained by a party outside of the discovery process;
  • requires parties who inadvertently breach the undertaking to take all necessary steps to prevent further disclosure;
  • extends beyond the termination of the proceedings and provides for the right of parties to request the return or destruction of information not publicly disclosed at the end of the proceeding;
  • extends to third parties or their counsel, including experts that have been retained, and can be enforced by the Court as against these third parties; and
  • restricts the internal dissemination within a party of discovery information indiscriminately and without a discernible purpose connected to the litigation.

Further, the Court noted that the Rule is applicable to a party immediately upon receipt of any discovery information.  There are no requirements to trigger the Rule.

Expanding the implied undertaking rule & the Federal Court’s jurisdiction

Notwithstanding the lengthy summary of what the implied undertaking rule entails, the Court acknowledges that in certain circumstances parties may have legitimate reasons to impose further restrictions on materials provided in the discovery process.

As an alternative to issuing a protective order, the Court suggested that an agreement between the parties should be sufficient. 

In LFOW v Soldan Fence, the parties questioned whether the Federal Court had jurisdiction to deal with what would essentially be non-disclosure agreements, as breach of contract disputes are generally a matter of provincial jurisdiction. In response, the Court indicated that because such an agreement by the parties would amount to an undertaking by the parties to expand the implied undertaking rule, and that so long as such undertakings are “strictly related to the procedural aspects of litigation and aim to assist in regulating the Court's process”, the Federal Court would have jurisdiction to deal with them.  Indeed, the Court suggested the breach of these undertakings beyond the implied undertaking rule could be punishable by contempt if necessary.

Moving forward

The Court is clearly setting a new course regarding how parties are to approach and manage the handling of confidential materials during the discovery phase of a proceeding.  Litigants in the Federal Court should take comfort in the expansive summary provided by the Court on the scope of the implied undertaking rule.  Although the Court has expressed that further obligations beyond the Rule should be dealt with by way of agreement or explicit undertakings, litigants should nevertheless take comfort in the fact that these agreements can be enforced in the Federal Court should the need arise.

As parties transition to the new practice, no doubt new issues will arise along the way.  For example, parties will need to proactively address and devise a process for ensuring confidential materials are not filed in Court without a designating party having a reasonable opportunity to obtain a confidentiality order.  In this regard, parties may alternatively wish to consider pre-emptive and focused Rule 151 motions for specific confidential documents disclosed during discovery where there is an expectation or good likelihood the documents will eventually be filed in Court. In addition, it is expected that parties may need to call upon the Court to intervene in the event that they are unable to come to an agreement concerning the handling of confidential information and documents in a proceeding.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions