Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether Rogers met the strict Sherman Estate test for an exceptional sealing/redaction order limiting public access to its appeal record from a private commercial arbitration.
• The court scrutinized if confidentiality clauses in the Distribution Agreements, and the parties’ historic treatment of those contracts as confidential, created a serious and well-evidenced risk to an important public interest justifying secrecy.
• Rogers’ evidence about the Distribution Agreements failed to show concrete commercial, proprietary, or third-party confidentiality harm, or any breach of the Competition Bureau Consent Agreement, if the contracts became public.
• The sweeping scope of the requested sealing (Distribution Agreements, most of the award, and the entire arbitration transcript) was found disproportionate, as it would render a public court appeal effectively private and undermine the open court principle.
• For the Training Documents, while proprietary and security-sensitive content did raise a serious public-interest concern, Rogers did not show they were actually part of the arbitral record or necessary for the appeal, so the necessity branch of the Sherman Estate test was not met.
• The motion for a sealing order and leave to file a redacted record was dismissed in full; no costs were awarded, and no monetary amounts or damages could be determined from this decision.

Background and parties

Rogers Communications Inc. appealed a confidential arbitration award rendered by former Justice Kathryn Feldman in December 2024. The arbitration concerned a commercial dispute between Rogers and BCE Inc. (Bell) relating to the sale and promotion of a Rogers-branded Mastercard in retail stores owned and operated by Glentel Inc. Glentel is jointly owned by Rogers and Bell, and each of them has a substantively identical Distribution Agreement with Glentel governing how their wireless products and related offerings are sold in those stores. The core commercial dispute before the arbitrator was whether Glentel’s marketing of a Rogers-branded Mastercard in its locations breached the Distribution Agreement between Rogers and Glentel. When the dispute first arose, Rogers and Bell initially approached the Ontario Superior Court but then chose to have their disagreement resolved through a private arbitration process. The arbitration proceeded on a confidential basis by agreement between those parties. Rogers, dissatisfied with the outcome of the arbitration, brought an appeal to the Superior Court of Justice. That shift in forum—from private arbitration to a public court—created the tension at the heart of this motion, because judicial proceedings in Ontario are presumptively open, including public access to the filed record.

The motion to seal and redact the court record

In its appeal, Rogers sought a broad sealing and redaction order so that large portions of the appeal record would not be accessible to the public, even though the appeal judge would see the entire record. Rogers identified three broad categories of material it wanted sealed or extensively redacted. The first category was the Distribution Agreements themselves between Rogers and Glentel, and Bell and Glentel. The second category was any documents, or portions of documents, that referred to or quoted the Distribution Agreements, including much of the arbitration award and the entire transcript of the arbitration hearing. The third category consisted of Rogers’ internal training and marketing materials for the Rogers Mastercard, which were provided to Glentel staff and had been produced to Bell in the arbitration on a “counsel’s-eyes-only” basis (the Training Documents). The motion was not opposed by either Bell or Glentel. It was brought in writing and, at the court’s direction, notice was given to the media through the court’s media notification procedure. No media organization responded. Importantly, the motion judge was not given the unredacted documents Rogers sought to seal; he only had Rogers’ affidavit evidence, factum and a version of the proposed public record showing in redacted form what would be hidden if the order were granted.

The open court principle and governing legal test

Justice Schabas anchored his analysis in the constitutional and common-law principle of open courts. Canadian courts operate on the premise that judicial proceedings and court records are public and transparent. This “openness principle” is linked to several core objectives: promoting public confidence in the administration of justice, ensuring that parties and courts act fairly and with integrity, allowing the community to learn about the law and comment on it, and safeguarding accountability of judges and litigants. The principle is also treated as a manifestation of freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms, protecting the public’s right not only to speak about the courts, but to receive information about them in the first instance. Against that backdrop, the court acknowledged that the Courts of Justice Act authorizes sealing orders, but emphasized that such orders are exceptional. The Supreme Court of Canada’s decision in Sherman Estate v. Donovan sets out the governing test for any discretionary limit on openness. The applicant must establish three things: that court openness poses a serious risk to an important public interest; that a sealing or similar order is necessary to prevent that serious risk and no reasonable alternatives will do; and that, as a matter of proportionality, the benefits of the order outweigh its negative effects on the open court principle. The burden is on the party seeking secrecy, the risk must be real and substantial, and the order must be as narrow as possible. The court also drew on Sierra Club and Mentuck, which instruct that it is not enough to show that an order would be convenient or beneficial for a party; there must be a serious danger to an important public interest that transcends the purely private interests of the litigant.

Distribution Agreements and arbitration-related documents

Rogers’ primary confidentiality claim concerned the Distribution Agreements and any material referencing them, including much of the arbitration award and the full hearing transcript. Rogers argued that these agreements had confidentiality clauses, had always been treated as confidential by the parties, and had formed part of a private arbitration attended only by counsel, party representatives and the arbitrator. Rogers further submitted that a Consent Agreement with the Commissioner of Competition, entered into when Rogers and Bell acquired Glentel, protected certain competitively sensitive information—such as pricing, promotions, and marketing plans—from being shared between the rival carriers, and that disclosure of the Distribution Agreements risked breaching those commitments. The court accepted that protection of genuinely confidential commercial agreements can, in principle, amount to an important public interest. However, relying on Sierra Club and later commercial-secrecy cases, the judge held that more was required than the existence of a confidentiality clause and the parties’ practice of treating the agreements as confidential. Rogers was required to show, on a balance of probabilities, that the contents of the Distribution Agreements were confidential in a meaningful sense and that disclosure would create a serious, real and substantial risk of commercial or other harm that could be characterized in public-interest terms. On the evidence filed, that threshold was not met. The Distribution Agreements between Rogers and Glentel and between Bell and Glentel were “substantially identical” and were already known to both carriers. There was no evidence that making the agreements public would breach confidentiality obligations owed to non-parties, nor any indication they contained proprietary or sensitive information whose exposure would harm competition or the market. With respect to the Consent Agreement, the judge reviewed it and noted that it barred Rogers and Bell from exchanging certain competitively sensitive information about each other’s pricing and marketing plans. But there was no evidentiary link explaining how publication of the Distribution Agreements—which both carriers already possessed—would violate that Consent Agreement. If those agreements did in fact reveal the other carrier’s pricing and marketing strategies, they could not lawfully have been shared between Rogers and Bell in the first place. On this evidentiary record, the court concluded that the first branch of the Sherman Estate test was not satisfied for the Distribution Agreements and related arbitration documents. The asserted confidentiality interests were not shown to rise to the level of an important public interest, nor was any concrete commercial harm established.

Proportionality and the breadth of the requested sealing

Even setting aside the failure on the first branch, the court found serious proportionality concerns. The underlying arbitration was about how Glentel could market the Rogers Mastercard under the Distribution Agreements and whether Glentel sales staff could be paid incremental commissions on Mastercard sales. Rogers’ appeal challenged the arbitrator’s interpretation and application of the Rogers–Glentel Distribution Agreement. Because those issues turned heavily on the content of the Distribution Agreements, sealing those contracts and redacting all references to them would, in practical terms, make most of the appellate record inaccessible to the public. Rogers’ proposal involved sealing the entire arbitration transcript and redacting substantial portions of the award and other documents, to the point that the hearing would be almost completely private. By contrast, in earlier cases like Rogers v. Telus, the material to be sealed was narrow and discrete, so the public could still understand the gist of the dispute. Here, the balance of interests weighed heavily in favour of openness. Rogers was essentially seeking a private appeal within a public court system based on its own commercial comfort, without clear evidence of serious harm. The judge emphasized that parties who voluntarily choose private arbitration can preserve confidentiality at that stage, but if they later invoke the public courts for enforcement or appeal, they must accept the open-court regime. If they want both an appeal and continued privacy, they can agree to a private appeal mechanism rather than resorting to the courts.

Training Documents and confidentiality claims

The Training Documents stood on a different footing factually. Rogers’ affidavit described these materials as proprietary training and marketing programs used to train Glentel staff on selling the Rogers Mastercard in 2024. According to the evidence, the documents contained competitively sensitive information about how Rogers positions and sells its products, detailed information about internal systems and processes, customer-information access procedures, and instructions to detect and prevent money laundering and other suspicious transactions. The affiant deposed that disclosure of this material could give competitors an advantage and would make it easier for malicious actors to circumvent Rogers’ internal controls, with potential harm not only to Rogers but also to customers and the public. The Training Documents had been produced to Bell in the arbitration on a counsel’s-eyes-only basis and were not to be shared more broadly, including with Bell’s business personnel. On those facts, the court accepted that failing to protect such documents could create a serious risk to an important public interest, thereby satisfying the first branch of the Sherman Estate test. The evidence supported both commercial-confidentiality concerns and broader public-facing risks around the integrity of financial controls and consumer protection. However, the application failed on the second branch—necessity. The judge examined the arbitral award and the described arbitral record and found no mention of the Training Documents in the award itself. The arbitrator identified the evidentiary record as consisting of three affidavits (two from Rogers, one from Bell) and there was no indication that the Training Documents were exhibited to those affidavits or otherwise formally put before her. The issues she decided were limited to interpreting and applying the Distribution Agreements, and determining whether Glentel sales representatives could earn incremental commissions on the Rogers Mastercard. Rogers had not demonstrated that any of the over 200 pages of Training Documents were part of that arbitral record or that they were necessary to resolve the legal errors alleged on appeal. Instead of identifying particular excerpts and explaining their relevance, Rogers sought to seal the entire tranche in the appeal record. In the absence of a clear explanation of why those documents, or specified parts of them, had to be before the appeal court, the judge held that it was not “necessary” to grant a sealing order in respect of them at this stage. If, during the hearing of the appeal, Rogers chose to rely on any portion of the Training Documents, it could then make targeted submissions to the appeal judge about how confidentiality should be managed.

Outcome, successful parties and monetary consequences

Justice Schabas dismissed Rogers’ motion for a sealing order and refused leave to file a redacted public record. The open-court presumption remained fully in place for the appeal, and the Distribution Agreements, arbitration award (with its references to those agreements), arbitration transcript, and Training Documents were not granted blanket confidentiality protection on the record as framed for this motion. Although Bell and Glentel did not actively oppose the motion, Rogers as the moving party failed to satisfy the strict Sherman Estate criteria. In practical terms, the respondents and the broader principle of open justice prevailed, while Rogers obtained none of the extraordinary relief it sought. The court expressly declined to address costs because the motion was unopposed, and the decision contains no information about any monetary award, damages, or costs from the underlying arbitration or from the appeal itself. Accordingly, in this ruling the successful parties are effectively Bell and Glentel, but there is no monetary award, costs order, or damages amount granted in their favour that can be identified, and no total amount can be determined from this decision.