You are here

Variety of remedies available for breach of the implied undertaking

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.
Breach of the implied undertaking is punishable by contempt of court, but courts may apply other remedies, such as prohibiting use of the information in question, or even staying an action that has been commenced based on information protected by the undertaking. In Juman v. Doucette, 2008 SCC 8 the Supreme Court of Canada explained the remedies available for breach of the implied undertaking as follows:
Breach of the undertaking may be remedied by a variety of means including a stay or dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy, contempt proceedings for breach of the undertaking owed to the court. 
(Juman v. Doucette, 2008 SCC 8 at para. 29).
In Goodman v. Rossi, 1995 CanLII 1888 (Ont. CA) the Ontario Court of Appeal indicated that lesser remedies than contempt should be considered before resorting to contempt of court:
[D]epending on how the issue arises, [remedies other than contempt of court] may be more appropriate, such as an injunction, before any improper use has occurred, or, as in this case, a motion to stay or dismiss a proceeding. In some cases, however, for example, where the breach has occurred and there is no other appropriate remedy, contempt proceedings may be the only avenue.
(Goodman v. Rossi, 1995 CanLII 1888 (Ont. CA)).