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Implied undertaking survives limited disclosure in chambers applications

Courts have indicated that parties should not be able to relieve themselves of the implied undertaking by simply filing discovery transcripts in interlocutory proceedings. In Discovery Enterprises Inc. v. Ebco Industries Ltd., 1997 CanLII 4405 (BCSC) Ebco had received various documents and then disclosed them to a third party. Ebco argued that disclosure to third parties of many of the documents was justified on the basis that they had previously been made public in court proceedings when they were attached to an affidavit filed in a chambers motion. Williams C.J.S.C. held that the implied undertaking does not necessarily end just because the materials have been disclosed in court:
 
From a practical point of view one has to ask whether a receiving party should be able to avoid the implied undertaking by simply filing an affidavit with the documents in some interlocutory matter in Court?  I think not.
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Should disclosure in a chambers application, filing in a public registry or even disclosure in open court, all of which are extremely limited disclosures, be a rationale for ending an implied undertaking which came about to protect the disclosing party from those documents being used for extraneous purposes?
 
(Discovery Enterprises Inc. v. Ebco Industries Ltd., 1997 CanLII 4405 at para. 29 and 34 (BCSC)).
 
Williams C.J.S.C. held that if the law was to be changed such that disclosure in court was to end the implied undertaking of confidentiality, that change should be made by the Rules Revision Committee. Accordingly, Williams C.J.S.C. ordered that no further disclosure could lawfully be made by Ebco even with respect to the documents that had been attached to the affidavit filed in court. Ebco applied for leave to appeal to the British Columbia Court of Appeal, but leave was refused: Discovery Enterprises Inc. v. Ebco Industries Ltd., 1998 CanLII 6472 (BCCA). In refusing leave Newbury J.A. agreed with Williams C.J.S.C. that such change to the law should be left to the Rules Revision Committee. Newbury J.A. noted that Williams C.J.S.C. concluded that the weight of authority was in favour of the continued applicability of the implied undertaking despite disclosure in court, but acknowledged that courts were divided on this issue:
 
The Chambers judge in the case at bar also noted the decision of the Federal Court of Appeal in Lubrizol v. Imperial Oil Ltd. (1990) 41 F.T.R. 234, the decision of the Alberta Queen's Bench in Wirth Ltd. v. Acadia Pipe & Supply Corp. (1991), 79 Alta. L.R. (2d) 345, and the decision of the Nova Scotia Court of Appeal in Sezerman v. Youle (1996), 135 D.L.R. (4th) 266.  In all three, the court found that the implied undertaking continued notwithstanding disclosure of the documents in court proceedings.  On the other hand, the Ontario Court of Appeal in dicta in Goodman v. Rossi (1995) 125 D.L.R. (4th) 613, suggested that the “rule” (i.e., the implied undertaking against disclosure) should cease to apply once the documents in question had been read out in open court.
(Discovery Enterprises Inc. v. Ebco Industries Ltd., 1998 CanLII 6472 at para. 4 (BCCA)).
 
At least with respect to evidence at trial, the above decisions in Discovery Enterprises Inc. v. Ebco Industries Ltd. should be read in light of the subsequent decision of International Brotherhood of Electrical Workers, Local 213 v. Hochstein, 2009 BCCA 355 mentioned above. 
 
In Bodnar v. The Cash Store Inc., 2010 BCSC 660 Madam Justice Griffin described procedural differences between evidence adduced at trial and information attached to affidavits filed in interlocutory proceedings as follows:
 
At trial there is a vetting process before information becomes part of the court record.  The adverse party is present and can object on a wide number of grounds to the admission of information obtained on discovery, including the objections that it is inadmissible hearsay or it is irrelevant to the determination of the issues before the court.  Further, in very limited situations, the adverse party can seek to have the information sealed at the time it is admitted into evidence.
 
In contrast, there is no vetting process before the information in an affidavit becomes part of the court record filed in support of an interim application.  The party who obtained the information through discovery of the adverse party can simply attach the information to an affidavit and file it in the court file.  Under the Rules of Court in this province, this affidavit evidence becomes part of the court record, accessible to the public, even though it may end up being irrelevant and inadmissible at the ultimate trial of the issues…
 
(Bodnar v. The Cash Store Inc., 2010 BCSC 660 at para. 27 - 28).
 
Following a detailed consideration of the various issues at play, Madam Justice Griffin went on to formulate the following rules governing the implied undertaking and materials filed in interlocutory proceedings:
 
(a) the implied undertaking does not end when information, produced by an adverse party under compulsion of discovery (the “Producing Party”), is filed in court by the receiving party (the “Receiving Party”) in support of an interim application;
(b) in considering a Receiving Party’s application for leave to be relieved from the implied undertaking, the court may consider, as one factor in support of leave, the fact that the information was filed in court for a legitimate purpose and became part of the court record; and
(c) the implied undertaking of a Receiving Party ends, with respect to information produced by the Producing Party, when that information is filed in court by the Producing Party itself.
(Bodnar v. The Cash Store Inc., 2010 BCSC 660 at para. 45).
 
Subsequent cases have confirmed that limited disclosure in the course of an interlocutory application does not terminate the implied undertaking with respect to that information: 
 
I am satisfied that Juman, in the civil context, supports a distinction between material filed at trial and material filed in earlier applications. In the former case, the implied undertaking is spent while in the latter it is not.
(R. v. Basi, 2011 BCSC 314 at para. 58).
 
The foregoing indicates that the mere fact that information is publicly available in the court registry does not automatically relieve the receiving party from its 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.