In a rare move, the Supreme Court of Canada agreed on January 19, 2001, to hear an appeal by Atomic Energy of Canada Limited (AECL) of an interlocutory order made in the course of an application for judicial review. In the application, the Sierra Club of Canada challenges the procedure followed when the Export Development Corporation financed AECL’s sales of nuclear reactors to China.
AECL is appealing a refusal by the Federal Court of Appeal to allow it to file certain documents under seal. It wishes to rely on the documents in its defence, but maintains that it cannot introduce them into open evidence without breaching its own obligations of confidentiality. The Federal Court of Appeal found the documents to be both relevant and confidential, but by a 2:1 majority denied AECL the right to file them under seal.
AECL was represented at the Federal Court of Appeal and on the application for leave by Brett Ledger and Peter Chapin of Osler, Hoskin & Harcourt LLP. Allan Coleman of Oslers was also involved in preparing AECL’s brief to the Supreme Court. Tim Howard of the Sierra Legal Defence Fund and Franklin Gertler are representing the Sierra Club of Canada. Brian Saunders and Sandy Graham of the Department of Justice represent the Attorney General of Canada and the other respondent federal Cabinet ministers.