See the earlier decisions in this case in the May 2010 and July 2010 editions of this newsletter. Novopharm had sought to keep its Notice of Allegation (“NOA”) confidential from third parties but the Prothonotary and Federal Court refused to grant such an order. In its appeal to the Federal Court of Appeal (“FCA”), Novopharm sought two types of interim relief to keep the NOA confidential pending the appeal hearing.
The FCA refused to order the requested stay of Mr. Justice Crampton’s decision because it would not provide the relief that Novopharm wanted. A stay only protects the status quo ante (i.e. the way things were before) and as Mr. Justice Crampton had refused to grant the order Novopharm sought, a stay would not protect the confidentiality of the information. The FCA also refused to grant a confidentiality order per se because when applying the RJR-MacDonald criteria it was clear that Novopharm had not demonstrated with evidence that it would suffer irreparable harm if such an order was not made.
The full text of the decision can be found at: http://decisions.fca-caf.gc.ca/en/2010/2010fca258/2010fca258.html