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Collateral use without consent or court order
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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 18:32 — Michael Dew
The Court in Hunt v. Atlas Turner Inc., 1995 CanLII 1800 (BCCA) said that the implied undertaking should not be construed rigidly and in a way that curtails other legal, social, or moral duties. For example, the implied undertaking may not prevent a lawyer from fulfilling his or her duty to report fraud or professional misconduct disclosed in the discovery process: Hunt v. Atlas Turner Inc., 1995 CanLII 1800 at para. 65 (BCCA). Note, however, the decision in Petitioner No. 1 v. A Lawyer, 2011 BCSC 921 which indicates that in non-emergency circumstances a court order permitting disclosure should be sought.
In Juman v. Doucette, 2008 SCC 8 the Supreme Court of Canada explained that in emergency situations a party may be justified in disclosing information about future crimes to the police without a court order:
[I]f, as discussed in [Smith v. Jones, [1999] 1 S.C.R. 455, which considered the public safety exception to solicitor-client privilege] there existed a situation of “immediate and serious danger”, the applicant would be justified in going directly to the police, in my opinion, without a court order.
(Juman v. Doucette, 2008 SCC 8 at para. 40).
Given the serious consequences that may be imposed for breach of the implied undertaking, counsel should proceed cautiously and seek direction of the court in the case of uncertainty.
