Executive Summary: Key Legal and Evidentiary Issues

• Aritzia sought a solicitor's eyes only (SEO) designation over highly sensitive product-level financial data in a trademark infringement dispute.
   
• Northern Reflections opposed the SEO designation, arguing it would prevent four of its executives from accessing information needed to instruct counsel.
   
• Both parties agreed that a protective order should issue, leaving the SEO designation as the sole contested issue on the motion.
   
• Evidence on cross-examination established that the disputed information covered sales, manufacturing costs, and profit margins for 33 products in Aritzia's EFFORTLESS line.
   
• Case law required Aritzia to show real, non-speculative harm rather than merely a good-faith belief that disclosure would cause harm.
   
• Whether the parties were true competitors remained an open question left to the trial judge, though the Court found Northern Reflections to be at least an aspiring competitor.
   

Facts of the case

This decision arises from a motion in an ongoing Federal Court trademark infringement action between Northern Reflections Ltd. and Aritzia Inc. and Aritzia LP. Northern Reflections alleges that Aritzia infringed its registered trademark for EFFORTLESS, used in association with pants and shorts, by selling products branded "EFFORTLESS" or "THE EFFORTLESS PANT." Aritzia denies the infringement claim and has brought a counterclaim.

During discovery, the parties agreed that a protective order should be issued to govern the exchange of confidential information. Their disagreement centered on Aritzia's request to designate certain information as "solicitor's eyes only" (SEO), a more restrictive category that would exclude Northern Reflections' own personnel from viewing it, limiting access to outside counsel and other specified categories of recipients. The information at issue consisted of sales and product costs, manufacturing costs, and gross profit margins at a product level for the 33 Aritzia products comprising the EFFORTLESS line. Aritzia supported its request with affidavits from Ms. Jenny Choy and Ms. Elysia Panaroni, along with cross-examination transcripts, while Northern Reflections relied on the affidavit of Mr. Hanspal Jando. The motion was heard by videoconference on July 3, 2026, before Associate Judge Shannon.

Policy and legislative provisions at issue

The proposed order defined Confidential Information and Solicitor's Eyes Only Information based on a producing party's good-faith belief that disclosure could cause harm and that the information holds commercial value not otherwise available to the public. Under the draft terms, Confidential Information could be shared with counsel, up to five in-house legal counsel and up to five employees or corporate officers of the receiving party, outside service providers, experts, and court personnel. Solicitor's Eyes Only Information carried tighter restrictions, excluding the receiving party's own in-house counsel and employees from direct access. The Court also applied Rule 400 of the Federal Courts Rules in exercising its discretion over costs.

In assessing whether an SEO designation was warranted, the Court applied the two-part test from AB Hassle v Canada (Minister of National Health & Welfare), requiring the producing party to show that the information had been treated as confidential at all relevant times and that, on a balance of probabilities, disclosure could reasonably harm its commercial interests. The Court also considered the three factors from Bard Peripheral Vascular Inc v WL Gore & Associates, Inc, namely the existence of similar orders in parallel litigation, the ability of a party to challenge a designation, and a good-faith belief that serious commercial harm could result from disclosure. The Court emphasized, citing Impulse Downhole Solutions Ltd v Challenger Downhole Tools Inc, that harm cannot be merely speculative and must be grounded in concrete evidence, and referenced Lundbeck Canada Inc v Canada (Health) for the principle that SEO orders are granted only in unusual circumstances.

Reasoning and analysis

Associate Judge Shannon found that Aritzia satisfied the first branch of the AB Hassle test, noting that Northern Reflections did not contest that Aritzia had consistently treated the disputed information as confidential. Turning to the second branch, the Court accepted that the case involved unusual circumstances justifying an SEO order. Although the question of whether the parties are true competitors was left for the trial judge, the Court found that Northern Reflections operates in the same industry, has claimed to be a competitor in its pleadings, and is at minimum an aspiring or would-be competitor. Given the granularity of the data sought, this weighed in favour of the SEO designation, though the Court noted this factor alone was not determinative.

The Court relied on cross-examination evidence, including testimony from Ms. Choy describing the information as Aritzia's "special sauce," to conclude that disclosure could cause serious harm to Aritzia's market share and financial position. It also accepted that Northern Reflections' executives, several of whom hold roles with other fashion brands under common ownership with Putman Investments, could unintentionally misuse the information in unrelated business dealings. The Court distinguished Del Ridge Homes Inc v Ledgemark Homes Inc, noting that unlike in that case, Aritzia had provided concrete evidence describing the specific information at issue and how its disclosure could harm Aritzia's commercial interests. Finally, the Court rejected Northern Reflections' argument that an SEO designation would improperly interfere with the solicitor-client relationship, citing consistent authority rejecting that position and noting that the order's built-in challenge mechanism mitigated any such concern.

Ruling and overall outcome

The Court found that Aritzia met the test for a protective order incorporating a solicitor's eyes only designation and granted the order sought. On the question of costs, the parties had jointly requested, on consent, that the successful party on the motion receive a lump-sum costs award, and the Court saw no reason to depart from that recommendation. Costs of $5,500 plus reasonable disbursements were awarded to Aritzia, the moving party and successful party on the motion.