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Statement of the principle regarding permissible use

In Hunt v. Atlas Turner Inc., 1995 CanLII 1800 (BCCA) the British Columbia Court of Appeal explained that information subject to the implied undertaking may be used for proper purposes within the litigation such information was originally disclosed in: 
 
“proper use” …[includes]…the right to disclose such documents to other advisors, such as potential expert witnesses, here or elsewhere as counsel may advise.  Such, in our view, is proper use in the proceedings.  Similarly, the obligation should not be construed rigidly... The obligation the law imposes is one of confidentiality from improper publication.  It does not supersede all other legal, social or moral duties.
(Hunt v. Atlas Turner Inc., 1995 CanLII 1800 at para. 65 (BCCA)).
 
In Sovani v. Gray et al.; Jampolsky v. Shattler et al., 2007 BCSC the plaintiff in a personal injury action objected to the defendant describing material subject to the implied undertaking in an affidavit to be used for a document production application (and to be disclosed to third parties for that purpose). The chambers judge rejected that objection and found that the implied undertaking did not prevent such disclosure to third party record holders. That decision was approved of by Chaisson J.A. in refusing leave to appeal to the British Columbia Court of Appeal:
 
[The chambers judge] relied on the clear language of [Hunt v. Atlas Turner Inc., 1995 CanLII 1800 (BCCA)] in declining to [find that the defendant had made improper use of the information subject to the implied undertaking].  That language is found repeatedly throughout Hunt and the many cases referred to in that case.  Hunt itself has been referred to in at least three cases by this court and in all of them reference is made to the words “in connection with the litigation in which they were produced”.
(Jampolsky v. Shattler, 2007 BCCA 439 at para. 15).
 
The above confirms that information subject to the implied undertaking may be used for legitimate steps taken in furtherance of the litigation the information was originally disclosed in.
 
 
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.