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Express undertakings

The implied undertaking is an all-encompassing rule designed to protect the privacy interests of litigants and it will generally be considered sufficient to protect those privacy interests. Only where serious risk of prejudice is shown will the court expressly order confidentiality: Knight v. Imperial Tobacco Canada, 2009 BCSC 339 at para. 9.
 
However, there have been cases where extra protections have been ordered. An express undertaking was ordered in Vetshopaustralia Pty. Ltd. v. Pivotal Partners Inc., 2008 BCSC 1336 at para. 65 where the defendant was particularly concerned about disclosure of sensitive business information.
 
In Animal Welfare International Inc. v. W3 International Media Ltd., 2011 BCSC 299 the plaintiff sued the defendant for setting up a competing business and sought records related to that competing business. The defendant argued that the personal information (names, credit card information) of third parties should be removed from the records before disclosure from the defendants to the plaintiff. After mentioning that the cost of redacting the records could be substantial, the court held that the records need not be redacted but that the implied undertaking would protect the privacy interests of third parties:
 
An order addressing the privacy concerns in this case should endeavour to consider the need to protect the privacy interests of third parties. Preventing the general disclosure of sensitive information of third parties, such as addresses and credit card information, where production is not necessary in advancing the litigation, would appear to be a prudent step in protecting these interests. This may be protected by the implied undertaking. I am satisfied it is not necessary to order redacting particularly sensitive information in this proceeding.
(Animal Welfare International Inc. v. W3 International Media Ltd., 2011 BCSC 299 at para. 23).
 
However, the court ordered that the principles of the plaintiff should sign confidentiality agreements:
 
I am prepared to exercise my discretion and order that Mark Perissinotto and Steven Perissinotto, two directors of the plaintiff referred to by counsel in argument, sign confidentiality agreements providing for the protection of any third party information contained in the documents referred to in paragraphs 4 and 5 of the order of Mr. Justice Rice. The documents will be delivered to the plaintiff within seven days of receipt of the signed confidentiality agreements.
(Animal Welfare International Inc. v. W3 International Media Ltd., 2011 BCSC 299 at para. 24).
 
Parties to family law proceedings who are concerned that the protections offered by the implied undertaking may not be sufficient may consider making an application for a sealing order under the Supreme Court Family Rules, BC Reg. 169/2009 e.g. Rule 5-1(30) which provides for discretionary sealing of financial information where the court considers that public disclosure of any information would be a hardship on the person disclosing the financial information.
 
Parties may also apply for a sealing order as a form of interlocutory injunctive relief under the test set out in RJR‑MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC). In Aquilini v. Aquilini, 2012 BCSC 919 the court granted an interim sealing order pending the hearing of a full application for a sealing order in that family law proceeding.
 
 
 
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.