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Collateral use without consent or court order

The Court in Hunt v. Atlas Turner Inc., 1995 CanLII 1800 (BCCA) said that the implied undertaking should not be construed rigidly and in a way that curtails other legal, social, or moral duties. For example, the implied undertaking may not prevent a lawyer from fulfilling his or her duty to report fraud or professional misconduct disclosed in the discovery process: Hunt v. Atlas Turner Inc., 1995 CanLII 1800 at para. 65 (BCCA). Note, however, the decision in Petitioner No. 1 v. A Lawyer, 2011 BCSC 921 which indicates that in non-emergency circumstances a court order permitting disclosure should be sought.
 
In Juman v. Doucette, 2008 SCC 8  the Supreme Court of Canada explained that in emergency situations a party may be justified in disclosing information about future crimes to the police without a court order:
 
[I]f, as discussed in [Smith v. Jones, [1999] 1 S.C.R. 455, which considered the public safety exception to solicitor-client privilege] there existed a situation of “immediate and serious danger”, the applicant would be justified in going directly to the police, in my opinion, without a court order.
(Juman v. Doucette, 2008 SCC 8 at para. 40).
 
Given the serious consequences that may be imposed for breach of the implied undertaking, counsel should proceed cautiously and seek direction of the court in the case of uncertainty.  
 
 
This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including representing claimants in motor vehicle accident claims, persons who have been denied insurance coverage by insurance companies, and persons dealing with builders lien issues.