"The Hollinger Sealing Order – Using the Sierra Club Test to Protect Settlement Privilege",
International Law Office, November 2011
Date:
November 8 2011
In a recent decision released in the Hollinger Inc., Companies' Creditors Arrangements Act (CCAA) proceeding, the Ontario Court of Appeal upheld a sealing order that protects from public disclosure the settlement amounts to be paid by Torys LLP and KPMG LLP under their respective settlement agreements with Hollinger, until such time as the settlements receive court approval. This decision is one of the few in which a sealing order has been granted in order to protect settlement privilege. While sealing orders are often used to protect commercially sensitive information, they have not typically been granted to protect settlement negotiations or settlement agreements.
This update outlines the court's decision in Hollinger (Re) and discusses the types of information and contexts that most often engage the subject of confidentiality orders. While settlement privilege has been protected by sealing orders in previous cases, such cases are uncommon. This update also attempts to explain why the court upheld the sealing order in this case, despite the limited precedent. Arguably, it may have done so, in part, because of the narrow and time-limited nature of the order.
Republished with permission.
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