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The implied undertaking applies only to compelled information

As noted above when discussing fundamental aspects of the implied undertaking, the implied undertaking applies to information which is disclosed under compulsion of the Rules of Court, or some other legislative rule of disclosure.
 
However, it is only information received (as opposed to given) under compulsion of the Rules of Court that is subject to an implied undertaking. Documents (or information) disclosed under compulsion of the Rules of Court are not subject to an implied undertaking in the hands of the disclosing party, but only in the hands of the receiving party. In British Columbia v. Tekavec, 2012 BCSC 1348 the court noted that the implied undertaking did not apply to transcripts in the hands of the defendants from their own examinations for discovery in the underlying personal injury proceeding: 
 
[I]t is not open to Mr. Tekavec [the defendant in the health care costs recovery action and in the underlying personal injury action] 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).
 
In Sobeski v. Mamo, 2012 ONCA 560 a husband filed for divorce and it was not opposed by the wife. The wife later learned that prior to seeking the divorce the husband had won 30 million in the lottery and so sued to set aside the divorce and obtain a share of the lottery money. In the course of that matrimonial proceeding the lawyer for the husband made a public comment that the husband was a liar: “his is a perjured account” (para 7). The husband and wife settled the matrimonial dispute, and in fact reunited! The husband then proceeded with a claim against the wife’s previous lawyer for defamation. In defending the defamation claim the wife’s former lawyer wanted to rely on documents provided to him by the wife during the course of the matrimonial litigation. Although counsel for the parties, and apparently the motions judge whose decision was being appealed, proceeded on the assumption that the implied undertaking applied to documents provided by the wife to her lawyer (para. 29), the Court of Appeal raised the issue of whether the implied undertaking applied at all since the documents had not been provided by one party to another, but by one party to her lawyer. Considering the codified version of the implied undertaking in Ontario, the court ruled that the implied undertaking did not apply:
 
In my view, while the documents were provided to Mr. Mamo by Ms. Sobeski in connection with her retainer of Mr. Mamo in the matrimonial proceedings, they were not obtained by Mr. Mamo under rule 30.1.01(1)(a).  Rule 30.1.01(2) restricts the deemed undertaking to evidence or information obtained under rule 30.1.01(1). As this court stated in Kitchenham v. AXA Insurance (Canada), 2008 ONCA 877 at para. 10, “the Rule exists to protect the privacy interest of the party compelled by the rules of disclosure to provide that information to another party to the litigation” (emphasis added).
 
I conclude from the above that on the basis of the express language of rule 30.1.01(1) and (2), the deemed undertaking does not apply to Mr. Mamo in these circumstances.
 
(Sobeski v. Mamo, 2012 ONCA 560 at para. 33-34).
 
The above confirms that only information disclosed by one party to another under compulsion of the Rules of Court is subject to the implied undertaking.
 
 
 
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.