Case Report – SCC says what’s disclosed in the discovery room stays in the discovery room

The Supreme Court of Canada unanimously allowed an appeal in Juman v. Doucette today (indexed at the BCCA as Doucette v. Wee Watch). It held that the implied undertaking rule prohibits a party from making a bona fide report of criminal conduct to law enforcement 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 chambers 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 allowed an appeal of this order. It acknowledged an exception to the undertaking when disclosure is necessary to prevent serious and imminent harm and then went further to permit the disclosure of suspected crimes to law enforcement without court approval in non-exigent circumstances.

Binnie J. writing for the majority of the Supreme Court of Canada, favored the chambers judge’s approach. He held that giving litigants a discretion to make bona fide reports to law enforcement was a recipe for conflict:

This difficulty is compounded by the fact that parties to civil litigation are often quick to see the supposed criminality in what their opponents are up to, or at least to appreciate the tactical advantage that threats to go to the police might achieve, and to pose questions to the examinee to lay the basis for such an approach: see 755568 Ontario Ltd., at p. 656. The rules of discovery were not intended to constitute litigants as private attorneys general.

More generally, Binnie J. made a number of statements that favour a high standard for relief from the implied undertaking rule, a stance he said is justified because examinees are subject to compelled testimony. His award also includes a nice general discussion of the rule, its basis and its exceptions.

In Ontario a litigant’s privacy interest in discovery transcripts and other un-filed pre-trial productions is protected by Rule 30.1.01, but the analysis is the same. In fact, the Court considered the limited Ontario jurisprudence in endorsing a rigorous undertaking over the protection of the public interest in the detection and prosecution of crimes. See in particular: 755568 Ontario Ltd. v. Linchris Homes Ltd. (1990), 1 O.R. (3d) (G.D.) and Perrin v. Beninger, 2004 CanLII 18347 (Ont. S.C.J.).

Juman v. Doucette, 2008 SCC 8.