Doughnuts not sealed

The ruling came in a class-action lawsuit launched by a group of Tim Hortons franchisees who claim that a corporate decision to centralize baking facilities and truck out frozen products to their outlets has hurt profit margins. Tim Hortons sought a sealing order on documents it intends to file, citing its fear that valuable trade secrets would be revealed to competitors. Judge Strathy refused, saying that a sealing order could erode public confidence in the justice system.

The Globe and Mail
February 15, 2010

Doughnuts not sealed
Globe editorial

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The old bromide that justice works best in the light of day is no longer an empty phrase. With increasing conviction, the country's judiciary is out to prove its truth Bar Talk

It was a ruling on an obscure motion; the kind that usually gets no publicity. Yet the decision this week by Mr. Justice George Strathy of the Ontario Superior Court says much about how far the judiciary has come to open up the courts.

The ruling came in a class-action lawsuit launched by a group of Tim Hortons franchisees who claim that a corporate decision to centralize baking facilities and truck out frozen products to their outlets has hurt profit margins.

Tim Hortons sought a sealing order on documents it intends to file, citing its fear that valuable trade secrets would be revealed to competitors.

Judge Strathy refused, saying that a sealing order could erode public confidence in the justice system. In a deliciously dry note, he observed that any competent competitor “would not likely need to know that you must bake a frozen lump of ingredients for a particular length of time at a particular temperature in order to make a muffin.”

Not long ago, Tim Hortons would have succeeded. Presented with arguments citing the right to a fair trial, judges readily slapped on publication bans or sealed files. That remained so even after the Supreme Court of Canada released its landmark 1994 ruling in Dagenais, holding that media rights cannot simply be trumped by other rights.

Twenty-five years later, however, the message has filtered down.

Many factors combined to send this fresh breeze wafting through judicial ranks. For one, media managers and lawyers selecting the best cases to fight, while shouldering the heavy costs of sustained litigation.

More importantly, the Supreme Court of Canada has made strong rulings that have bolstered press rights and the public's right to know. The Canadian Judicial Council has also supported greater access, while several leading judges – most notably in B.C., Manitoba and Ontario – have made it a personal mission.

Lower down, a steady infusion of young judicial talent – media-savvy, reared in the Internet age and steeped in the open-court principle – have dislodged a hidebound bench which often viewed public access as a threat to fairness.

The battle is not over. Publication bans are still too prevalent, and many a court clerk stands jealous guard over a file that should be publicly available.

However, the old bromide that justice works best in the light of day is no longer an empty phrase. With increasing conviction, the country's judiciary is out to prove its truth.


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