Case Report – No prejudice where information simply made to “lie about in the great wide world” (ABCA)

On January 31, the Alberta Court of Appeal quashed a procedural appeal brought by a non-party to a longstanding commercial litigation dispute and, in doing so, made some comments on the use of information gathered in the discovery process.

The non-party appealed from an order which granted the plaintiffs partial relief from the implied undertaking and a confidentiality order. The non-party claimed the order caused it prejudice in a second related action, presumably in which it was a defendant. The Court rejected the prejudice argument (emphasis in original):

Since counsel for the appellant argued that he would be prejudiced if his client could not appeal, we went beyond mere status and inquired into the nature of the prejudice or injustice suggested. He seemed to think that the order under appeal put into evidence in the second suit against him, information gathered largely without his participation, even his knowledge, in the first suit.

That suggestion of ex parte injustice is not correct. Both the implied undertaking restricting the use of information got through discovery, and confidentiality orders, merely add an extra impediment to attempts to use evidence for purposes outside the original lawsuit. If those impediments are removed, then the information in question simply has the same status as all other information lying about in the great wide world.

The first rule of the law of evidence is that courts will not receive all information as evidence. Much of it is inadmissible: most hearsay, for example, and all irrelevant information. Therefore, waiving the implied undertaking rule, or lifting a confidentiality order, has no effect on such inadmissibility. What is inadmissible as evidence for other reasons other than confidentiality or implied undertakings remains inadmissible. To lift a confidentiality order or the implied undertaking merely allows the parties to another action to tender the information as evidence. It has no influence whatever on the judge or master’s decision about whether to accept it as evidence. The usual common-law rules of evidence (as modified by statute or Rules of Court) still apply.

The Court also noted that the order appealed from gave the non-party an express right to raise the matter of fairness in the second action.

Dreco Energy Services v. Wenzel Downhole Tools, 2008 ABCA 36 (CanLII).

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