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Information which is otherwise publicly available

In Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 the Supreme Court of Canada held that the implied undertaking of confidentiality only applies to information that would not have been available other than through discovery:
 
The rule of confidentiality will apply only to information obtained solely from that examination, however, and not to information that is otherwise accessible to the public.  If the information is available to the public from other sources, a party should not be given the burden of applying to the court for leave before using it merely because it was also communicated at an examination on discovery.  The obligation of confidentiality applies only to information that would have remained confidential if the examination on discovery had not taken place.
(Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 at para. 78).
 
The Federal Court has also held that the undertaking does not attach to information that is otherwise publicly available: N.M. Paterson & Sons Ltd. v. St. Lawrence Seaway Management, 2002 FCT 1247.  
 
In some provinces, the rules of civil procedure allow anyone to apply for disclosure of information filed in court. For example, under Rule 23-1(1) of the British Columbia Rules of Court, B.C. Reg. 168/2009, any person can apply for documents contained in a civil proceeding file in the British Columbia Supreme Court registry:
 
Copy of document filed in registry
(1) Unless otherwise provided by an enactment, a person may, on payment of the proper fees, obtain from the registry a copy of a document on file in a proceeding.
 
Despite the above, it has been held that limited disclosure in interlocutory proceedings does not relieve the receiving party from the implied undertaking; see discussion below regarding effect of limited disclosure of implied undertaking information in interlocutory proceedings. Note that limits on obtaining information from the registry may apply in criminal and family matters.
 
 
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.