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Consent to collateral use should generally be granted where cases are related
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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 18:08 — Michael Dew
Where there are related proceedings that involve similar parties and / or issues the court would likely order that the information may be shared between actions:
[A]n order for production of a discovery transcript from another action should be almost automatic, provided it is established that there is sufficient connection between the two actions, by the parties, their interests and the broad issues between them, so that it can be said that the actions are related.
(Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd., 1998 CanLII 5684 at para. 20 (BCSC)).
Similarly:
Where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted.
(Juman v. Doucette, 2008 SCC 8 at para. 35).
In Chonn v. DCFS Canada Corp dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 the court confirmed that consent to use of documents from previous personal injury cases should usually be granted in subsequent personal injury cases:
The practical consequences of these restrictions, it will be seen, are in most cases minimal. In most cases where ICBC or its counsel is aware, through the pleadings or their direct involvement in earlier litigation, of relevant documents or other pretrial discovery from that litigation, they need only contact plaintiff’s counsel to obtain his or her concurrence to the use of the materials in question. Overwhelmingly, having regard to the authorities to which I will refer, that concurrence should be forthcoming.
(Chonn v. DCFS Canada Corp dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 at para. 26).
Where cases are related, such as where a plaintiff is injured in two accidents and claims compensation for similar injuries in respect of each action a court order allowing sharing of information between the actions would likely be granted and so the parties should likely consent to such use without the need for a court hearing.
A party that wishes to use documents subject to an implied undertaking should first request permission and then, if such consent is not forthcoming, apply for a court order permitting the desired use.
