A significant case on the implied undertaking rule (or deemed undertaking rule, as it may be) is being heard at the Supreme Court of Canada on November 16th.
In Doucette v. Wee Watch Day Care Systems Inc., 2006 BCCA 2662 the British Columbia Court of Appeal held that a party obtaining information in the discovery process can make a bona fide report of criminal conduct to the police without seeking court approval.
The underlying action was a negligence claim against a day care and day care worker which was filed after a child suffered a seizure while under care. The police investigation was ongoing, but the police had not yet laid charges by the time the day care worker’s examination for discovery was scheduled. The day care worker filed a motion to request an express restriction on disclosure of her transcript and the Attorney-General brought a competing motion seeking to vary the implied undertaking to allow disclosure of the discovery transcript to the police. The trial judge held that both motions were premature but declared that the A-G and the police were under an obligation not to cause the parties to violate their undertakings without the day care worker’s consent or leave of the court.
The Court of Appeal acknowledged an exception to the undertaking when disclosure is necessary to prevent serious and imminent harm and then went further to permit disclosure without court approval in non-exigent circumstances:
The conclusion reached by the chambers judge is thoughtful and practical. It does not, however, contemplate the circumstance in which neither party has an interest in or is willing to seek court ordered relief from the disclosure of information under the undertaking or otherwise. Nor does it contemplate non-exigent circumstances of disclosed criminal conduct. It is easy to imagine a situation in which criminal conduct is disclosed in the discovery process, but no one apprehends that immediate harm is likely to result. Nevertheless, if an application to court is required before a party may disclose the alleged conduct, the perpetrator of the crime may be notified of the disclosure and afforded the opportunity to destroy or hide evidence or otherwise conceal his or her involvement in the alleged crime.
In my opinion, the scope of the undertaking must be fashioned in a manner that accommodates these and other eventualities. I conclude that the implied undertaking of confidentiality rule is as stated in Hunt: a party obtaining production of documents or transcriptions of oral examination of discovery is under a general obligation, in most cases, to keep such document confidential. A party seeking to use the discovery evidence other than in the proceedings in which it is produced must obtain the permission of the disclosing party or leave of the court. However, the obligation of confidentiality does not extend to bona fide disclosure of criminal conduct. On the other hand, non-bona fide disclosure of alleged criminal conduct would attract serious civil sanctions for contempt.
The focus of the inquiry is on the use to which the evidence is to be made. A party is limited in the manner in which it can use the discovery evidence as I have indicated above. A non-party, such as the police, who obtains the discovery evidence by lawful means (such as by search warrant) is not prevented from using the evidence to further an investigation. Whether the evidence can be used in a subsequent criminal proceeding is a matter to be considered by the criminal court.
In Ontario the issue is governed by Rule 30.1.01(8) but the analysis is the same. In fact, the Court considered the limited Ontario jurisprudence on the issue and held, to the extent the Ontario jurisprudence favoured a rigorous deemed undertaking rule over the protection of the public interest in the detection and prosecution of crimes, the Ontario jurisprudence should not be followed. See in particular: Linchris Homes Ltd. (1990), 1 O.R. (3d) (G.D.), Perrin v. Beninger, 2004 CanLII 18347 (Ont. S.C.J.) and Klassen v. College of Physicians and Surgeons of Ontario,  O.J. No. 4055 (S.C.J.).
This is truly one to watch.
Alex Cameron of the On the Identity Trail project recently wrote a good article on the related issue of privacy and litigation at blog-on-nymity. It’s available here.