Federal Court of Appeal Settles the Protective Order Debate

  • February 24, 2020
  • Jahdiel Larraguibel, Fineberg Ramamoorthy LLP

Protective orders undoubtedly remain pertinent and useful for intellectual property litigants and there is no justification, legal or otherwise, for stifling this long-standing practice. – Boivin J.A.

After a period of uncertainty with respect to protective orders, the Federal Court of Appeal recently returned the Court’s practice to its status quo with its decision Canadian National Railway Company v BNSF Railway Company, 2020 FCA 45 (“Canadian National Railway FCA”) issued on February 17, 2020.  


The leadup to Canadian National Railway FCA began in 2017 in Live Face on Web wherein Prothonotary Tabib declined to issue a protective order on consent – at the time a routine practice in intellectual property disputes.  It was reasoned that in light of the implied undertaking already imposed upon litigants and the cost, inconvenience and the potential for abuse associated with protective orders, the issuance of a protective order by the Federal Court served little useful purpose.

Following the Live Face on Web decision, a bundle of decisions from the Federal Court only added to the uncertainty and confusion surrounding protective orders: