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Implied undertaking information may be served on proposed targets of court order

In Roberts v. Singh et al, 2006 BCSC 906 the plaintiff admitted on discovery that he was working and being paid under the table at the same time he was claiming social assistance payments. The defendants sought production of the plaintiff’s social assistance file from the Ministry of Human Resources to obtain documents to further undermine the plaintiff’s credibility, and served a copy of the application materials on the Ministry of Human Resources. Those application materials included a copy of the discovery transcript of the plaintiff containing the admissions as to welfare fraud. The plaintiff applied for an order that the implied undertaking had been breached, but the application was refused on the basis of procedural irregularities and the master’s lack of jurisdiction to make findings of contempt. 
 
The issue arose again in Sovani v. Gray et al.; Jampolsky v. Shattler et al., 2007 BCSC 403 where defence counsel summarized information subject to an implied undertaking in an affidavit to be used in support of a document production application. The affidavit (but not the exhibits to the affidavit) was then sent to various third party record holders from whom the defendant sought production of records (see para. 14). Plaintiff's counsel objected to disclosure of the information summarized in the affidavit to the third parties, and sought an order that defence counsel and various ICBC employees had committed contempt of court in providing such information to the third parties. In rejecting the plaintiff’s application, the court held that the implied undertaking did not prevent disclosure of information to third party record holders: 
 
[N]o case imposes any limitation based on the implied undertaking of confidentiality on the use which may be made of information disclosed through discovery in the litigation in which that information is obtained.  I accept that as a correct statement of the law in British Columbia.
(Sovani v. Gray et al.; Jampolsky v. Shattler et al., 2007 BCSC 403 at para. 30)
 
Imposition of constraints on the parties’ use of information obtained through the discovery process in the litigation in which it is obtained, by expanding the scope of the implied undertaking, could inhibit counsel in their investigation of the case and undermine the rationale for court compelled disclosure.
(Sovani v. Gray et al.; Jampolsky v. Shattler et al., 2007 BCSC 403 at para. 47).
 
The reasoning of Edwards J. in Sovani v. Gray et al.; Jampolsky v. Shattler et al., 2007 BCSC 403 was affirmed in Jampolsky v. Shattler, 2007 BCCA 439 where Chiasson J.A. declined to grant leave to appeal his decision. Special costs were awarded against the plaintiff for bringing what the court considered to be an overly aggressive and improper application for contempt of court: Jampolsky v. Shattler, 2010 BCSC 408.
 
 
 
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.