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Consent must be sought from named parties even if not parties of record
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This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including assisting persons who have been denied insurance coverage by insurance companies, and persons dealing with builders lien issues.
Sun, 2012-10-28 18:07 — Michael Dew
In I.C.B.C. v. Titanich, 2010 BCSC 403 ICBC sued Mr. Titanich to recover damages which ICBC had paid to the plaintiff on account of an accident caused by Mr. Titanich while he was impaired by alcohol. Mr. Titanich did not file an appearance in the claim by the plaintiff, but ICBC defended the claim and in the process obtained production of records from the RCMP. Mr. Titanich then complained when ICBC used those RCMP records in the subsequent debt recovery action against him. ICBC argued that it was not required to seek Mr. Titanich’s consent to the use of the materials because, having not filed an appearance, Mr. Titanich was not a party to the earlier litigation. The court rejected that argument:
The plaintiff argues that it was not in breach of the implied undertaking because it was not required to obtain Mr. Titanich’s consent because he was not a party of record in the earlier action. I am not persuaded that there is merit in that position. Such an approach would not serve the purpose of the undertaking. To illustrate, Mr. Titanich was examined for discovery in the earlier action. If the plaintiff’s position is correct then it would be able to use that discovery evidence in this or any action without obtaining Mr. Titanich’s consent because he was not a party of record. The implications for the object of the exercise are obvious.
(I.C.B.C. v. Titanich, 2010 BCSC 403 at para. 16).
The above indicates that the implied undertaking applies to information produced in a proceeding even if the person the information relates to did not file pleadings in the proceeding.
