You are here

The implied undertaking is not a privilege

Information covered by the implied undertaking rule is not privileged:
 
[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… 
(Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 at para. 42, emphasis added).
 
See also Juman v. Doucette, 2008 SCC 8 at para. 56.
 
The implied undertaking rule is not a rule of privilege, but simply restricts how a receiving party may use information produced under compulsion of the Rules of Court or some other legislative provision. 
 
The implied undertaking obligation is also separate and distinct from obligations under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165: see Sovani v. Gray et al.; Jampolsky v. Shattler et al., 2007 BCSC 403 at paras. 33-40.
 
 
 
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.