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The implied undertaking cannot be used as a basis for not disclosing relevant documents

Unlike privileges such as legal advice privilege, litigation privilege, and settlement privilege, the implied undertaking is not in and of itself a rule of evidence and cannot be used as a basis for not disclosing relevant documents.
 
In Cochrane v. Heir, 2011 BCSC 477 the court held that documents and examination for discovery transcripts in the plaintiff’s possession from a previous motor vehicle accident claim were relevant to the present motor vehicle accident claim and had to be listed and the implied undertaking could not be used to shield disclosure of those documents:
 
I am satisfied that the documents covered by the request of counsel to be relieved from the implied undertaking, including the discovery transcripts, are material to this action. Moreover, the documents other than the transcripts of the examination for discovery were produced by the plaintiff in the previous action.
 
In my view, there should be no need to relieve counsel for the defendants of his obligation under the implied undertaking. The documents are either in the possession of the plaintiff or they were in her control or possession. The plaintiff has an independent obligation to list and produce them further to her obligations under Rule 7-1(1)(a)(i) of the Civil Rules. The plaintiff cannot shield herself from her obligation to list and produce relevant documents by invoking the implied undertaking against opposing counsel who came into possession of those documents in the previous litigation…
 
(Cochrane v. Heir, 2011 BCSC 477 at para. 4-5).
 
In British Columbia v. Tekavec, 2012 BCSC 1348 the court held that the defendants in a health care costs recovery action were required to list transcripts from their own examinations for discovery in the underlying personal injury proceeding: 
 
[I]t is not open to Mr. Tekavec to resist disclosure of the transcript of his own examination for discovery or any other material that he created on the basis of an implied undertaking as described by the Supreme Court of Canada in Juman. The items in question are of his own creation; they do not fall under the category of materials obtained from another party in the previous action and thus are not subject to the implied undertaking restriction. The same would apply to Mr. Jack with respect to the transcript of his own examination for discovery or other material he generated in the original action.
(British Columbia v. Tekavec, 2012 BCSC 1348 at para. 27).
 
 
 
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.