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Collateral use for purpose of commencing another action

In Goodman v. Rossi, 1995 CanLII 1888 (Ont. CA) a plaintiff in a wrongful dismissal action received documents on discovery which she considered to be defamatory. The plaintiff initiated a defamation action based on the documents received on discovery, but the Ontario Court of Appeal granted the defendant a stay of proceedings because in that case it would have been unfairly prejudicial to the defendant to allow the plaintiff to base the defamation action on documents that she, nor hardly anyone else, would have seen but for the discovery in the wrongful dismissal action.
 
In Juman v. Doucette, 2008 SCC 8 the Supreme Court of Canada considered whether information subject to an implied undertaking could be used in a claim against a third party not involved in the litigation the information was disclosed in, and held that it could not:
 
It includes the wrongdoing of persons other than the examinee…
(Juman v. Doucette, 2008 SCC 8 at para. 5).
 
In Southpaw Credit Opportunity Master Fund LP v. Asian Coast Development (Canada) Ltd., 2012 BCSC 14 the court allowed documents disclosed in shareholder oppression claim to be used by the shareholders as the foundation for a tort claim:
 
The proposed Tort Claim arises from the same transactions occurring between the same parties. I agree with the submission of Southpaw that there is substantial overlap and that the proceedings are related. Apart from a concern with respect to procedure, ACDL has identified no prejudice that it would suffer if Southpaw is given leave to use its documents as proposed. In my view, there is no strong policy interest against the proposed use of the documents and the balancing of prejudice favors granting Southpaw leave to use the documents as proposed.
(Southpaw Credit Opportunity Master Fund LP v. Asian Coast Development (Canada) Ltd., 2012 BCSC 14 at para. 20).
 
In Glenayre Manufacturing Ltd. v. Pilot Pacific Properties Inc., 2004 BCSC 864 the plaintiff used documents subject to the implied undertaking as the basis for a second action. The court struck out the writ of summons and the statement of claim in the second action, but found that it was just and convenient to join the defendant named in the second action as a party to the first action.
 
In Professional Components Ltd. v. Rigollet, 2010 BCSC 688 the court allowed (after the fact) an action to continue where the pleadings had been drafted using information subject to an implied undertaking. 
 
 
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.