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Interrogatories and the implied undertaking

In Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 the Supreme Court of Canada indicated that under the Quebec rules of civil procedure interrogatories were not subject to the implied undertaking of confidentiality because they are part of the court record: Lac d’Amiante at para. 67.
 
In the earlier case of Goodman v. Rossi, 1995 CanLII 1888 (Ont. CA) the Ontario Court of Appeal indicated that the implied undertaking did cover information provided in response to interrogatories:
 
In the English text Matthews and Malek, Discovery (1992) at page 312 the opinion is expressed that “[a]lthough there is no reported authority as to whether the implied undertaking on discovery in relation to documents applies to interrogatories, it is submitted that in principle the implied undertaking does extend to interrogatories, as they are a form of discovery, to which answers are given under compulsion and not being provided voluntarily.”
(Goodman v. Rossi, 1995 CanLII 1888 (Ont. CA)).
 
In British Columbia answers to interrogatories are not filed in court as a matter of course and may never be entered into evidence at trial nor filed in interlocutory proceedings. For that reason, it seems there is little to distinguish them from other information obtained during document production and examination for discovery to which the implied undertaking clearly applies. It would likely be prudent to treat answers to interrogatories as covered by the implied undertaking until such information is entered into evidence at trial, and seek court order or consent before using them for a collateral purpose.
 
 
 
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.