Case Report – BCCA affirms that implied undertaking terminates after evidence adduced

17 Aug

On August 13th, the British Columbia Court of Appeal declared that defendants to a defamation action were not restricted from “publicizing” documents adduced as evidence at trial by the plaintiff.

In March 2008 in Juman v. Doucette, the Supreme Court of Canada made clear that a litigant’s implied undertaking of confidentiality terminates once information is adduced as evidence in open court. Even though the defendants’ motion for a permissive declaration was heard after Juman, the motions judge was sympathetic to the plaintiff’s confidentiality claim. The motions judge stressed that the law was not settled at the time of trial and recognized that the plaintiff had a genuine and ongoing interest in keeping its information confidential even though it had not asked for a protective order at trial.

The Court of Appeal held that the motions judge erred and granted a declaration that the defendants were released from their confidentiality undertaking vis-a-vis the documents in question. It held that, ambiguities in the law aside, “courts do not change the law but declare it.” It also held that the policy reasons favouring a continuing undertaking could not possibly apply given the plaintiff had entered the documents into evidence itself. According to the Court of Appeal, the plaintiff should have asked for a protective order.

International Brotherhood of Electrical Workers, Local 213 v. Hochstein, 2009 BCCA 355.

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