You are here

Claim may be struck out for breach of the implied undertaking

Authority to strike claim out
In British Columbia the power to strike an action for breach of the implied undertaking arises from the inherent jurisdiction of the court:
 
[I]t is within the inherent jurisdiction of the court to strike a statement of claim as a remedy for the breach of an implied undertaking. The Rules of Court do not apply in the circumstances.
(Professional Components Ltd. v. Rigollet, 2010 BCSC 688 at para. 33).
 
Cases considering applications to strike claims
As noted above when discussing various ways in which the implied undertaking may be breached, 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 plaintiff used information obtained in one action to draft pleadings in a second action. The defendants in the second action applied to have the claim struck out on the basis that the plaintiff had breached the implied undertaking. The court reprimanded the plaintiff for breaching the implied undertaking, but allowed the second action to continue:
 
In the present case, it would have been preferable for the plaintiff to ask permission rather than arguing now for forgiveness, but I doubt that a nunc pro tunc order here will have the effect of encouraging lawyers to use disclosed material without first seeking the consent of the other party or leave of the court.
 
I am satisfied that the interests of justice favour granting the plaintiff leave to use the discovery evidence, including the meta data in the expert’s report, nunc pro tunc for the purposes of the Copyright Action.
 
(Professional Components Ltd. v. Rigollet, 2010 BCSC at para. 55 – 56).
 
In I.C.B.C. v. Titanich, 2010 BCSC 403 the defendant complained when the plaintiff made improper use of documents obtained from the RCMP in a previous proceeding, and although the court found that a breach of the implied undertaking had occurred, it declined to strike out the plaintiff’s claim.
 
 
 
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.