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The rationale for implied undertakings

The implied undertaking rule is justified on the view that full disclosure is required in civil litigation to ensure that justice is done, and that such disclosure is more likely where privacy interests are protected as much as possible. A benefit of the implied undertaking is that it offers a measure of privacy with respect to information never disclosed in court.
 
The rationale for the implied undertaking has been explained by various courts as follows:
 
The primary rationale for the imposition of the implied undertaking is the protection of privacy.  Discovery is an invasion of the right of the individual to keep his own documents to himself.  It is a matter of public interest to safeguard that right.  The purpose of the undertaking is to protect, so far as is consistent with the proper conduct of the action, the confidentiality of a party's documents.  It is in general wrong that one who is compelled by law to produce documents for the purpose of particular proceedings should be in peril of having those documents used by the other party for some purpose other than the purpose of the particular legal proceedings and, in particular, that they should be made available to third parties who might use them to the detriment of the party who has produced them on discovery.  A further rationale is the promotion of full discovery, as without such an undertaking the fear of collateral use may in some cases operate as a disincentive to proper discovery.  The interests of proper administration of justice require that there should be no disincentive to full and frank discovery.
(Goodman v. Rossi, 1995 CanLII 1888 (Ont. CA) citing Matthews & Malek, Discovery (London: Sweet & Maxwell, 1992) at 253).
 
Similarly:
 
A party to a civil proceeding is under compulsion to produce information in order to comply with discovery rules. The implied undertaking of confidentiality provides some protection of privacy by assuring the litigant that the information will not be used for a collateral purpose outside the litigation. This encourages the litigant to live up to his or her wide discovery obligations and so indirectly aids in getting at the truth in a civil action.
(Bodnar v. The Cash Store Inc., 2010 BCSC 660 at para. 21).
 
Similarly:
 
[T]he preferred approach [to civil discovery] is a far-reaching and liberal exploration that allows the parties to obtain as complete a picture of the case as possible.  In return for this freedom to investigate, an implied obligation of confidentiality has emerged in the case law, even in cases where the communication is not the subject of a specific privilege… The aim is to avoid a situation where a party is reluctant to disclose information out of fear that it will be used for other purposes. The aim of this procedure is also to preserve the individual’s right to privacy. 
(Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 at para. 42).
 
Similarly:
 
[There is] an implied undertaking of confidentiality concerning the evidence obtained or provided in examinations on discovery. This undertaking is meant to allow the parties to obtain as full a picture of the case as possible, without the fear that disclosure of the information will be harmful to their interests, privacy-related or otherwise...
(Globe and Mail v. Canada (Attorney General), 2010 SCC 41 at para. 77).
 
 
 
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.