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Standing to apply for relief from implied undertakings

Non-parties to the implied undertakings may apply for permission to use discovery information for a collateral purpose. Whether such applications will succeed will depend on the circumstances:
 
[A] non-party engaged in other litigation with an examinee, who learns of potentially contradicting testimony by the examinee in a discovery to which that other person is not a party, would have standing to seek to obtain a modification of the implied undertaking and for the reasons given above may well succeed.  Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition.  But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose. 
(Juman v. Doucette, 2008 SCC 8 at para. 53).
 
In addition to referring to information improperly obtained, the broad approach to standing taken in the passage above acknowledges that it is not possible to compartmentalize one’s mind and “not be aware of” information learned in a related proceeding. Where a person has information covered by the implied undertaking that knowledge can be used to bring an application for an order permitting use of the information, but persons bringing such application should exercise judgment when assembling affidavits in support of such applications because until such time as an order permitting collateral use is granted it is theoretically a breach of the implied undertaking to use such information and so disclosure of the information itself (as opposed to a broad generalized description of the nature and/or origin of the information) in affidavits should likely be avoided.
 
Parties not bound by the implied undertaking but aware that the information they received was likely provided to them in breach of the undertaking should not use such information without obtaining a court order permitting use. In Stelmaschuk v. The College of Dental Surgeons of B.C., 2011 BCSC 518 a disciplinary inquiry committee under the Health Professions Act, RSBC, 1996 c. 183 was considering the conduct of a dentist and during that process reviewed an examination for discovery transcript from an action in which the dentist had been sued. The transcript had been provided to the committee by Mr. Sabo, the plaintiff in that earlier proceeding, contrary to the implied undertaking Mr. Sabo was under, and contrary to a confidentiality agreement Mr. Sabo had signed (para. 19). The court noted that although the College of Dental Surgeons was not bound by the implied undertaking (it was not the College but Mr. Sabo who has received the information under compulsion of the Rules of Court) it should not have used the material without a court order permitting use:
 
Juman, supra, makes it clear that the College is not bound by the undertaking, but in its full discussion of the competing public interests at stake on this issue, it is evident that third parties, generally government bodies, even those in the position of protecting the public, should respect the court process to the extent of seeking an order to be allowed access to such material.
 
In the circumstances of this case, I am not persuaded that there was such urgency or importance to the discovery material that the College could not seek an order to allow its receipt of the material from Mr. Sabo to be rendered legitimate. 
 
(Stelmaschuk v. The College of Dental Surgeons of B.C., 2011 BCSC 518 at para. 47-48).
 
Although being clear that use of the transcript without permission or court order was improper, the court allowed the College’s application for permission to use the transcripts in future hearing: Stelmaschuk v. The College of Dental Surgeons of B.C., 2011 BCSC 518 at para. 54.
 
 
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.