Tag: deemed undertaking

Arbitrator says reference to record in opening statement does not extinguish implied undertaking

On September 9th, a British Columbia arbitrator held that a Union’s reference to a “secret recording” in an opening statement did not bring the implied undertaking to an end. The employer, he therefore concluded, breached the undertaking by attempting to investigate the making of the recording after the Union made its opening statement and before the recording was adduced in evidence. The arbitrator referred to the leading cases, which establish that the undertaking comes to an end when records are adduced in evidence. He also held that, in arbitration (which lacks pleadings), it is good policy to sustain the undertaking beyond opening statements because doing so encourages parties to make fulsome opening statements.

Fortis BC Energy Inc and IBEW, Local 213 (9 September 2016, Peckles).

Lawyer free to use documents received from client and produced to opposing party

Yesterday the Court of Appeal for Ontario held that the deemed undertaking rule does not apply to documents that a lawyer receives from a client for the purposes of documentary production. The Court held that such documents are not obtained by counsel under compulsion by the Rules and that the purpose of the deemed undertaking is only to protect against misuse of information received by a party to litigation.

In this case, a lawyer wanted to use documents he received from his former client in her matrimonial dispute to defend a defamation claim brought by the former client’s ex-spouse. The Court’s disposition allows him to do so, subject to the former client’s right to a return of her documents and the lawyer’s ability to obtain an order for third-party production.

Sobeski v Mamo, 2012 ONCA 560 (CanLII).

Investigating Computer Abuse – Help for Human Resources

My colleague Kathryn Bird and I presented today at the HRPA 2011 conference on “Investigating Computer System Abuse – Help for HR.” It was our aim to help human resources professionals charged with investigating computer-related misconduct to identify issues, ask proper questions of internal IT and know when to get professional IT forensics and legal help. We covered investigation basics, sources of digital evidence, preservation best practices, interview tips and managing the investigation record. Big thanks to Kevin Lo of Froese Forensics for reflecting on some of our ideas over beers. Slides are below.

Party complains about receiving confidential information of non-parties. What next?

On January 24th, the Ontario Superior Court of Justice held that a plaintiff did not breach the deemed undertaking rule by complaining to a professional body (the Institute of Chartered Accountants of Ontario) that the defendants had produced documents containing their former clients’ confidential information.

Though the Court doubted that the plaintiff’s motives were pure, it held that he did not breach the deemed undertaking rule because his use of the production was done with the affected clients’ consent. The Court stressed that it was not deciding whether the defendants’ production was proper, but also said that a privacy-related complaint about producing documents pursuant to the Rules is “remarkable on its face.”

Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties? (2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?

Martenfeld v. Collins Barrow Toronto LLP, 2011 ONSC 441 (CanLII).

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Party complains about receiving confidential information of non-parties. What next?

On January 24th, the Ontario Superior Court of Justice held that a plaintiff did not breach the deemed undertaking rule by complaining to a professional body (the Institute of Chartered Accountants of Ontario) that the defendants had produced documents containing their former clients’ confidential information.

Though the Court doubted that the plaintiff’s motives were pure, it held that he did not breach the deemed undertaking rule because his use of the production was done with the affected clients’ consent. The Court stressed that it was not deciding whether the defendants’ production was proper, but also said that a privacy-related complaint about producing documents pursuant to the Rules is “remarkable on its face.”

Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties?(2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?

Martenfeld v Collins Barrow Toronto LLP, 2010 ONSC 598.