Court headnote

Juman v. Doucette
Collection
Supreme Court Judgments
Date
2008-03-06
Neutral citation
2008 SCC 8
Report
[2008] 1 SCR 157
Case number
31590
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Civil procedure
Notes
SCC Case Information: 31590
Decision Content
SUPREME COURT OF CANADA
Citation: Juman v. Doucette, [2008] 1 S.C.R. 157,
2008 SCC 8
Date: 20080306
Docket: 31590
Between:
Suzette F. Juman also known as Suzette McKenzie
Appellant
v.
Jade Kathleen Ledenko Doucette, by her litigation guardian Greg Bertram,
Chief Constable of the Vancouver Police Department, Attorney General of Canada and
Attorney General of British Columbia
Respondents
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 59)
Binnie J. (McLachlin C.J. and Bastarache, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)
______________________________
Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8
Suzette F. Juman also known as Suzette McKenzie Appellant
v.
Jade Kathleen Ledenko Doucette, by her litigation guardian
Greg Bertram, Chief Constable of the Vancouver Police
Department, Attorney General of Canada and Attorney
General of British Columbia Respondents
Indexed as: Juman v. Doucette
Neutral citation: 2008 SCC 8.
File No.: 31590.
2007: November 15; 2008: March 6.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Civil procedure — Discovery — Implied undertaking of confidentiality — Collateral use of discovery information — Discovery information thought to disclose criminal acts — Underlying civil claim settled after discovery — Authorities seeking to obtain information disclosed during pre‑trial discovery — Whether Attorney General has standing to seek to vary implied undertaking to which he is not party — If so, whether application should be rejected in circumstances of this case.
Civil procedure — Discovery — Implied undertaking of confidentiality — Scope of “implied undertaking” rule.
The appellant, a childcare worker, provided day-care services in her home. A 16‑month‑old child suffered a seizure while in her care. The child was later determined to have suffered a brain injury. A civil action claiming negligence was commenced. The Vancouver Police started a criminal investigation, which is still ongoing. The appellant moved, prior to discovery, to prevent the authorities from accessing her discovery without further court order. She relied on the parties’ implied undertaking to the court not to use documents or answers on discovery for any purpose other than securing justice in the civil proceedings in which the answers were compelled, whether or not such documents or answers were in their origin confidential or incriminatory in nature. The Attorney General of British Columbia brought a cross‑motion to vary the undertaking to permit the authorities to gain access to the discovery transcripts. At discovery, the appellant claimed the protection of the Canadian and British Columbia Evidence Acts and the Canadian Charter of Rights and Freedoms . The transcripts are now in the possession of the parties and/or their counsel. After discovery, the underlying claim settled. The appellant’s discovery was never entered into evidence at a trial. Its contents were not disclosed in open court.
The chambers judge found that the implied undertaking extended to evidence of crimes and concluded that it was not open to the police to seize the transcript under a search warrant. The Court of Appeal set aside the decision of the chambers judge. In its view, the implied undertaking rule “does not extend to bona fide disclosure of criminal conduct”. Accordingly, the parties were at liberty to disclose the appellant’s discovery evidence to the police. The authorities could also obtain it by any lawful investigative means, including a search warrant or a subpoena duces tecum.
Held: The appeal should be allowed.
A party is not in general free to disclose discovery evidence of what they view as criminal conduct to the police or other strangers to the litigation without a court order. The root of the implied undertaking is the statutory compulsion on a party such as the appellant to participate fully in pre‑trial oral and documentary discovery. If the opposing party seeks information that is relevant and is not protected by privilege, it must be disclosed even if it tends to self‑incrimination. While the public interest in getting at the truth in a civil action outweighs the examinee’s privacy interest, the latter is entitled to a measure of protection, and the law thus requires that the invasion of privacy should generally be limited to the level of disclosure necessary to do justice in the civil litigation in which the disclosure is made. The rules of discovery were not intended to constitute litigants as private attorneys general. [3] [20] [25] [43]
Here, because of the facts, much of the appellant’s argument focussed on her right to protection against self‑incrimination, but the implied undertaking rule is broader than that. It includes the wrongdoing of persons other than the examinee and covers innocuous information that is neither confidential nor discloses any wrongdoing at all. [5]
Contrary to the submission of the Attorney General, the implied undertaking rule does not conflict with the “open court” principle. Pre‑trial discovery does not take place in open court. Nor does the question of judicial accountability arise in pre‑trial discoveries. The situations are simply not analogous. [21‑22]
The court has the discretionary power to grant exemptions from or variations to the undertaking, but unless an examinee is satisfied that such exemptions or variations will only be granted in exceptional circumstances, the undertaking will not achieve its intended purpose. Accordingly, unless a statutory exemption overrides the implied undertaking, the onus will be on the person applying for the exemption or variation to demonstrate on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy, protection against self‑incrimination, and the efficient conduct of civil litigation. The factors that may be taken into account include public safety concerns or contradictory testimony by the examinee about the same matters in different proceedings. In situations of immediate and serious danger, the applicant may be justified in going directly to the police without a court order. However, the availability of an exemption relating to discovery disclosing criminal offences not amounting to serious and immediate danger should be left with the courts. The public interest in the prosecution of crime will not necessarily trump a citizen’s privacy interest in statutorily compelled information. [14] [32‑33] [38‑41] [44] [48]
It is important that applications for variation proceed expeditiously. Persons entitled to notice of these applications will be for the chambers judge to decide on the facts, but normally, only parties to the litigation will be entitled to notice of such an application, not the police nor the media. [31] [52]
The action here has been settled, but the policies reflected in the implied undertaking remain undiminished. If the parents of the victim or other party wished to disclose the appellant’s transcript to the police, they could have made an application to the court for permission to make disclosure, but none of them did so, and none of them is party to the current proceeding. [5] [22]
In this case, the Attorney General of British Columbia has standing to seek to vary an implied undertaking to which he is not a party, but the application should be rejected on the facts. His objective was to obtain evidence that would help assist the police investigation, and possibly to incriminate the appellant. It would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant’s right to silence and the protection against self‑incrimination afforded her by the criminal law. [53] [58]
On the other hand, the Court of Appeal correctly held that the implied undertaking is no bar to persons not party to it, and the appellant’s discovery transcript and documents are not privileged or exempt from seizure. The authorities have available to them the usual remedies of subpoena duces tecum or a search warrant under the Criminal Code . However, if at this stage they do not have the grounds to obtain a search warrant, it is not open to them to build their case on the appellant’s compelled testimony. [5] [55‑56]
The search warrant, where available, only gives the police access to the discovery material. It does not authorize its use in any proceedings that may be initiated. If criminal charges are brought, the prosecution may also compel a witness to produce a copy of the documents or transcripts in question from his or her possession by a subpoena duces tecum. The trial judge would then determine what, if any, use could be made of the material, having regard to the appellant’s Charter rights and any other relevant considerations. None of these issues arise for decision on the present appeal. [56‑57]
Cases Cited
Not followed: Home Office v. Harman, [1983] 1 A.C. 280; distinguished: Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; referred to: Hunt v. T & N plc (1995), 4 B.C.L.R. (3d) 110; Ross v. Henriques, [2007] B.C.J. No. 2023 (QL), 2007 BCSC 1381; Lac d’Amiante du Québec Ltée v. 2858‑0702 Québec Inc., [2001] 2 S.C.R. 743, 2001 SCC 51; Stickney v. Trusz (1973), 2 O.R. (2d) 469, aff’d (1974), 3 O.R. (2d) 538 (Div. Ct.), aff’d (1974), 3 O.R. (2d) 538 (C.A.), leave to appeal ref’d, [1974] S.C.R. xii; Tricontinental Investments Co. v. Guarantee Co. of North America (1982), 39 O.R. (2d) 614; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; Slavutych v. Baker, [1976] 1 S.C.R. 254; Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1; Shaw Estate v. Oldroyd, [2007] B.C.J. No. 1310 (QL), 2007 BCSC 866; Rayman Investments and Management Inc. v. Canada Mortgage and Housing Corp., [2007] B.C.J. No. 628 (QL), 2007 BCSC 384; Wilson v. McCoy (2006), 59 B.C.L.R. (4th) 1, 2006 BCSC 1011; Laxton Holdings Ltd. v. Madill, [1987] 3 W.W.R. 570; Blake v. Hudson’s Bay Co., [1988] 1 W.W.R. 176; 755568 Ontario Ltd. v. Linchris Homes Ltd. (1990), 1 O.R. (3d) 649; Rocca Enterprises Ltd. v. University Press of New Brunswick Ltd. (1989), 103 N.B.R. (2d) 224; Eli Lilly and Co. v. Interpharm Inc. (1993), 161 N.R. 137; Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (1986); Goodman v. Rossi (1995), 125 D.L.R. (4th) 613; Crest Homes plc v. Marks, [1987] 2 All E.R. 1074; Smith v. Jones, [1999] 1 S.C.R. 455; Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R. (2d) 260; Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323; Harris v. Sweet, [2005] B.C.J. No. 1520 (QL), 2005 BCSC 998; Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 27 C.P.C. (4th) 252; Lubrizol Corp. v. Imperial Oil Ltd. (1990), 33 C.P.R. (3d) 49; Livent Inc. v. Drabinsky (2001), 53 O.R. (3d) 126; R. v. Henry, [2005] 3 S.C.R. 609, 2005 SCC 76; R. v. Nedelcu (2007), 41 C.P.C. (6th) 357; Rank Film Distributors Ltd. v. Video Information Centre, [1982] A.C. 380; Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Campbell, [1999] 1 S.C.R. 565; Attorney‑General for Gibraltar v. May, [1999] 1 W.L.R. 998; Bank of Crete S.A. v. Koskotas (No. 2), [1992] 1 W.L.R. 919; Sybron Corp. v. Barclays Bank Plc., [1985] 1 Ch. 299; Bailey v. Australian Broadcasting Corp., [1995] 1 Qd. R. 476; Commonwealth v. Temwood Holdings Pty Ltd. (2001), 25 W.A.R. 31, [2001] WASC 282; Perrin v. Beninger, [2004] O.J. No. 2353 (QL); Tyler v. M.N.R., [1991] 2 F.C. 68; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Serendip Physiotherapy Clinic (2004), 189 C.C.C. (3d) 417.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 5 .
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (c), 13 .
Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, s. 14.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 196 , 487 .
Evidence Act, R.S.B.C. 1996, c. 124, s. 4.
Federal Rules of Civil Procedure, 28 U.S.C.A. r. 26(c).
Queen’s Bench Rules, M.R. 553/88, r. 30.1.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 30.1.
Rules of Civil Procedure (Prince Edward Island), r. 30.1.
Rules of Court, B.C. Reg. 221/90, rr. 2(5), 27, 44, 56(1), (4), 60(41), (42), 64(1).
Authors Cited
Laskin, John B. “The Implied Undertaking”. A paper presented to the Canadian Bar Association — Ontario at a Continuing Legal Education Conference on Privilege and Confidential Information in Litigation — Current Developments and Future Trends, October 19, 1991.
Papile, Cristiano. “The Implied Undertaking Revisited” (2006), 32 Adv. Q. 190.
Stevenson, William A., and Jean E. Côté. Civil Procedure Encyclopedia, vol. 2. Edmonton: Juriliber, 2003.
APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Low and Kirkpatrick JJ.A.) (2006), 269 D.L.R. (4th) 654, [2006] 9 W.W.R. 687, 227 B.C.A.C. 140, 374 W.A.C. 140, 55 B.C.L.R. (4th) 66, 31 C.P.C. (6th) 149, [2006] B.C.J. No. 1176 (QL), 2006 BCCA 262, setting aside a decision of Shaw J., [2005] 11 W.W.R. 539, 45 B.C.L.R. (4th) 108, 15 C.P.C. (6th) 211, 129 C.R.R. (2d) 109, [2005] B.C.J. No. 589 (QL), 2005 BCSC 400. Appeal allowed.
Brian T. Ross and Karen L. Weslowski, for the appellant.
No one appeared for the respondent Jade Kathleen Ledenko Doucette, by her litigation guardian Greg Bertram.
Karen F. W. Liang, for the respondent the Chief Constable of the Vancouver Police Department.
Michael H. Morris, for the respondent the Attorney General of Canada.
J. Edward Gouge, Q.C., and Natalie Hepburn Barnes, for the respondent the Attorney General of British Columbia.
The judgment of the Court was delivered by
[1] Binnie J. — The principal issue raised on this appeal is the scope of the “implied undertaking rule” under which evidence compelled during pre-trial discovery from a party to civil litigation can be used by the parties only for the purpose of the litigation in which it was obtained. The issue arises in the context of alleged child abuse, a matter of great importance and concern in our society. The Attorney General of British Columbia rejects the existence of an implied undertaking rule in British Columbia (factum, at para. 4). Alternatively, if there is such a rule, he says it does not extend to bona fide disclosures of criminal activity. In his view the parties may, without court order, share with the police any discovery documents or oral testimony that tend to show criminal misconduct.
[2] In the further alternative, the Attorney General argues that the existence of an implied undertaking would not in any way inhibit the ability of the authorities, who are not parties to it, to obtain a subpoena duces tecum or to seize documents or a discovery transcript pursuant to a search warrant issued under s. 487 of the Criminal Code, R.S.C. 1985, c. C-46 .
[3] The British Columbia Court of Appeal held that the implied undertaking rule “does not extend to bona fide disclosure of criminal conduct” ((2006), 55 B.C.L.R. (4th) 66, 2006 BCCA 262, at para. 56). This ruling is stated too broadly, in my opinion. The rationale of the implied undertaking rule rests on the statutory compulsion that requires a party to make documentary and oral discovery regardless of privacy concerns and whether or not it tends to self-incriminate. The more serious the criminality, the greater would be the reluctance of a party to make disclosure fully and candidly, and the greater is the need for broad protection to facilitate his or her cooperation in civil litigation. It is true, as the chambers judge acknowledged, that there is an “immediate and serious danger” exception to the usual requirement for a court order prior to disclosure ((2005), 45 B.C.L.R. (4th) 108, 2005 BCSC 400, at paras. 28-29), but the exception is much narrower than is suggested by the dictum of the Court of Appeal, and it does not cover the facts of this case. In my view a party is not in general free to go without a court order to the police or any non-party with what it may view as “criminal conduct”, which is a label that covers many shades of suspicion or rumour or belief about many different offences from the mundane to the most serious. The qualification added by the Court of Appeal, namely that the whistle blower must act bona fides, does not alleviate the difficulty. Many a tip to the police is tinged with self-interest. At what point does the hope of private advantage rob the communication of its bona fides? The lines need to be clear because, as the Court of Appeal itself noted, “non-bona fide disclosure of alleged criminal conduct would attract serious civil sanctions for contempt” (para. 56 (emphasis added)).
[4] Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges.
[5] Here, because of the facts, much of the appellant’s argument focussed on her right to protection against self-incrimination, but the implied undertaking rule is broader than that. It includes the wrongdoing of persons other than the examinee and covers innocuous information that is neither confidential nor discloses any wrongdoing at all. Here, if the parents of the victim or other party wished to disclose the appellant’s transcript to the police, he or she or they could have made an application to the B.C. Supreme Court for permission to make disclosure, but none of them did so, and none of them is party to the current proceeding. The applicants are the Vancouver Police Department and the Attorney General of British Columbia supported by the Attorney General of Canada. None of these authorities is party to the undertaking. They have available to them the usual remedies of subpoena duces tecum or a search warrant under the Criminal Code . If at this stage they do not have the grounds to obtain a search warrant, it is not open to them to build their case on the compelled testimony of the appellant. Further, even if the authorities were thereby to obtain access to this compelled material, it would still be up to the court at the proceedings (if any) where it is sought to be introduced to determine its admissibility.
[6] I agree with the chambers judge that the balance of interests relevant to whether disclosure should be made by a party of alleged criminality is better evaluated by a court than by one of the litigants who will generally be self-interested. Discoveries (both oral and documentary) are likely to run more smoothly if none of the disputants are in a position to go without a court order to the police, or regulators or other authorities with their suspicions of wrongdoing, or to use the material obtained for any other purpose collateral or ulterior to the action in which the discovery is obtained. Of course the implied undertaking does not bind the Attorney General and the police (who are not parties to it) from seeking a search warrant in the ordinary way to obtain the discovery transcripts if they have the grounds to do so. Apparently, no such application has been made. At this stage the matter has proceeded only to the point of determining whether or not the implied undertaking permits the “bona fide disclosure of criminal conduct” without court order (B.C.C.A., at para. 56). In my view it does not do so in the circumstances disclosed here. I would allow the appeal.
I. Facts
[7] The appellant, a childcare worker, provided day-care services in her home. A 16-month-old child, Jade Doucette, suffered a seizure while in the appellant’s care. The child was later determined to have suffered a brain injury. She and her parents sued the owners and operators of the day-care centre for damages, alleging that Jade’s injury resulted from its negligence and that of the appellant.
[8] The appellant’s defence alleges, in part, that Jade suffered a number of serious mishaps, including a bicycle accident while riding as a passenger with her father, none of which involved the appellant, and none of which were disclosed to the appellant when the child was delivered into her care (Statement of Defence, at para. 3).
[9] The Vancouver Police have for several years been conducting an investigation, which is still ongoing. In May 2004, the Vancouver Police arrested the appellant. She was questioned in the absence of her counsel (A.R., at p. 179). She was later released. In August 2004, the appellant and her husband received notices that their private communications had been intercepted by the police pursuant to s. 196 of the Criminal Code . To date, no criminal charges have been laid. In furtherance of that investigation, the authorities seek access to the appellant’s discovery transcript.
[10] In November 2004, the appellant brought an interlocutory motion to prohibit the parties to the civil proceeding from providing the transcripts of discovery (which had not yet been held) to the police. She also sought to prevent the release of information from the transcripts to the police or the Attorney General of British Columbia and a third motion to prohibit the Attorney General of British Columbia, the police and the RCMP from obtaining and using copies of the transcripts and solicitor’s notes without further court order. She relied upon the implied undertaking rule.
[11] The Attorney General of British Columbia opposed the appellant’s motions and brought his own cross-motion for an order (if necessary) varying the legal undertaking to permit release of the transcripts to the police. He also brought a second motion for an order permitting the police to apply for the transcripts by way of search warrant, subpoena or other investigative means in the usual way.
[12] The appellant was examined for discovery for four days between June 2005 and September 2006. She claimed the protection of the Canada Evidence Act, R.S.C. 1985, c. C-5 , the British Columbia Evidence Act, R.S.B.C. 1996, c. 124, and (though an explicit claim was not necessary) of the Canadian Charter of Rights and Freedoms , and says that she answered all the appropriate questions put to her. The transcripts are now in the possession of the parties and/or their counsel.
[13] In 2006, the underlying claim was settled. The appellant’s discovery was never entered into evidence at a trial nor its contents disclosed in open court.
II. Judicial History
A. Supreme Court of British Columbia (Shaw J.) (2005), 45 B.C.L.R. (4th) 108, 2005 BCSC 400
[14] The chambers judge observed that an examination for discovery is statutorily compelled testimony by rule 27 of the B.C. Rules of Court, B.C. Reg. 221/90. As a general rule, there exists in British Columbia an implied undertaking in civil actions that the parties and their lawyers will use discovery evidence strictly for the purposes of the court case. Discovery exists because getting at the truth in the pursuit of justice is an important social goal, but so (he held) is limiting the invasion of the examinee’s privacy. Evidence taken on oral discovery comes within the scope of the undertaking. He noted that the court has the discretionary power to grant exemptions from or variations to the undertaking, and that in the exercise of that discretion courts must balance the need for disclosure against the right to privacy.
[15] The chambers judge rejected the contention that the implied undertaking does not apply to evidence of crimes. Considerations of practicality supported keeping evidence of crimes within the scope of the undertaking because such evidence could vary from mere suspicion to blatant admissions and from minor to the most serious offences. It was better to leave the discretionary power of relief to the courts.
[16] As to the various arguments asserted by the appellant under ss. 7 , 11 (c) and 13 of the Charter , the chambers judge concluded that “[t]he state is forbidden to use its investigatory powers to violate the confidentiality requirement of solicitor-client privilege; so too, in my view, should the state be forbidden to violate the confidentiality protected by discovery privilege” (para. 62). In his view, it was not open to the police to seize the transcript under a search warrant.
B. Court of Appeal for British Columbia (Newbury, Low and Kirkpatrick JJ.A.) (2006), 55 B.C.L.R. (4th) 66, 2006 BCCA 262
[17] The Court of Appeal allowed the appeal. In its view, the parties were at liberty to disclose the appellant’s discovery evidence to the police to assist in the criminal investigation. Further, the authorities could obtain the discovery evidence by lawful investigative means such as subpoenas and search warrants.
[18] Kirkpatrick J.A., speaking for a unanimous court, noted the English law on the implied undertaking of confidentiality had been applied in British Columbia only in recent years. See Hunt v. T & N plc (1995), 4 B.C.L.R. (3d) 110. In that case, however, the British Columbia Court of Appeal had held that “[t]he obligation the law imposes is one of confidentiality from improper publication. It does not supersede all other legal, social or moral duties” (para. 65; quoted at para. 32). Thus, in Kirkpatrick J.A.’s opinion, “the undertaking in the action cannot form a shield from the detection and prosecution of crimes in which the public has an overriding interest” (para. 48).
[19] Kirkpatrick J.A. then turned to the Charter issues in the case. She noted that no charges had been laid against the appellant and therefore that ss. 11 (c) (which applies to persons “charged with an offence”) and 13 (which provides use immunity) were not engaged. The appellant was not in any imminent danger of deprivation of her right to liberty or security, and therefore any s. 7 claim was premature. Kirkpatrick J.A. declared that an implied undertaking, being just a rule of civil procedure, should not be given “constitutional status”. Discovery material is not immune to search or seizure. The appeal was therefore allowed.
III. Analysis
[20] The root of the implied undertaking is the statutory compulsion to participate fully in pre-trial oral and documentary discovery. If the opposing party seeks information that is relevant and is not protected by privilege, it must be disclosed even if it tends to self-incrimination. See British Columbia Rules of Court, rr. 27(2), 44, 60(41), 60(42) and 64(1); Ross v. Henriques, [2007] B.C.J. No. 2023 (QL), 2007 BCSC 1381, at paras. 180-81. In Quebec, see Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., [2001] 2 S.C.R. 743, 2001 SCC 51, at para. 42. In Ontario, see Stickney v. Trusz (1973), 2 O.R. (2d) 469 (H.C.J.), aff’d (1974), 3 O.R. (2d) 538 (Div. Ct.), aff’d (1974), 3 O.R. (2d) 538 (p. 539) (C.A.), leave to appeal ref’d, [1974] S.C.R. xii. The rule in common law jurisdictions was affirmed post-Charter in Tricontinental Investments Co. v. Guarantee Co. of North America (1982), 39 O.R. (2d) 614 (H.C.J.), and has been applied to public inquiries, Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97.
[21] The Attorney General of British Columbia submits that Lac d’Amiante, which was based on the Quebec Code of Civil Procedure, R.S.Q., c. C-25, “was wrongly decided” (factum, at para. 16). An implied undertaking not to disclose pre-trial documentary and oral discovery for purposes other than the litigation in which it was obtained is, he argues, contrary to the “open court” principle stated in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, and Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (factum, at para. 6). The Vancouver Police support this position (factum, at para. 48). The argument is based on a misconception. Pre-trial discovery does not take place in open court. The vast majority of civil cases never go to trial. Documents are inspected or exchanged by counsel at a place of their own choosing. In general, oral discovery is not conducted in front of a judge. The only point at which the “open court” principle is engaged is when, if at all, the case goes to trial and the discovered party’s documents or answers from the discovery transcripts are introduced as part of the case at trial.
[22] In Attorney General of Nova Scotia v. MacIntyre, relied on by the Vancouver Police as well as by the Attorney General of British Columbia, the contents of the affidavit in support of the search warrant application were made public, but not until after the search warrant had been executed, and “the purposes of the policy of secrecy are largely, if not entirely, accomplished” (p. 188). At that point the need for public access and public scrutiny prevail. Here the action has been settled but the policies reflected in the implied undertaking (privacy and the efficient conduct of civil litigation generally) remain undiminished. Nor is Edmonton Journal helpful to the respondents. In that case the Court struck down a “sweeping” Alberta prohibition against publication of matrimonial proceedings, including publication of the “comments of counsel and the presiding judge”. In the face of such prohibition, the court asked, “[h]ow then is the community to know if judges conduct themselves properly” (p. 1341). No such questions of state accountability arise in pre-trial discoveries. The situations are simply not analogous.
A. The Rationale for the Implied Undertaking
[23] Quite apart from the cases of exceptional prejudice, as in disputes about trade secrets or intellectual property, which have traditionally given rise to express confidentiality orders, there are good reasons to support the existence of an implied (or, in reality, a court-imposed) undertaking.
[24] In the first place, pre-trial discovery is an invasion of a private right to be left alone with your thoughts and papers, however embarrassing, defamatory or scandalous. At least one side in every lawsuit is a reluctant participant. Yet a proper pre-trial discovery is essential to prevent surprise or “litigation by ambush”, to encourage settlement once the facts are known, and to narrow issues even where settlement proves unachievable. Thus, rule 27(22) of the B.C. Rules of Court compels a litigant to answer all relevant questions posed on an examination for discovery. Failure to do so can result in punishment by way of imprisonment or fine pursuant to rules 56(1), 56(4) and 2(5). In some provinces, the rules of practice provide that individuals who are not even parties can be ordered to submit to examination for discovery on issues relevant to a dispute in which they may have no direct interest. It is not uncommon for plaintiff’s counsel aggressively to “sue everyone in sight” not with any realistic hope of recovery but to “get discovery”. Thus, for the out-of-pocket cost of issuing a statement of claim or other process, the gate is swung open to investigate the private information and perhaps highly confidential documents of the examinee in pursuit of allegations that might in the end be found to be without any merit at all.
[25] The public interest in getting at the truth in a civil action outweighs the examinee’s privacy interest, but the latter is nevertheless entitled to a measure of protection. The answers and documents are compelled by statute solely for the purpose of the civil action and the law thus requires that the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy that purpose and that purpose alone. Although the present case involves the issue of self-incrimination of the appellant, that element is not a necessary requirement for protection. Indeed, the disclosed information need not even satisfy the legal requirements of confidentiality set out in Slavutych v. Baker, [1976] 1 S.C.R. 254. The general idea, metaphorically speaking, is that whatever is disclosed in the discovery room stays in the discovery room unless eventually revealed in the courtroom or disclosed by judicial order.
[26] There is a second rationale supporting the existence of an implied undertaking. A litigant who has some assurance that the documents and answers will not be used for a purpose collateral or ulterior to the proceedings in which they are demanded will be encouraged to provide a more complete and candid discovery. This is of particular interest in an era where documentary production is of a magnitude (“litigation by avalanche”) as often to preclude careful pre-screening by the individuals or corporations making production. See Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1 (C.A.), per Esson J.A. dissenting, at pp. 10-11.
[27] For good reason, therefore, the law imposes on the parties to civil litigation an undertaking to the court not to use the documents or answers for any purpose other than securing justice in the civil proceedings in which the answers were compelled (whether or not such documents or answers were in their origin confidential or incriminatory in nature). See Home Office v. Harman, [1983] 1 A.C. 280 (H.L.); Lac d’Amiante; Hunt v. T & N plc; Shaw Estate v. Oldroyd, [2007] B.C.J. No. 1310 (QL), 2007 BCSC 866, at para. 21; Rayman Investments and Management Inc. v. Canada Mortgage and Housing Corp., [2007] B.C.J. No. 628 (QL), 2007 BCSC 384; Wilson v. McCoy (2006), 59 B.C.L.R. (4th) 1, 2006 BCSC 1011; Laxton Holdings Ltd. v. Madill, [1987] 3 W.W.R. 570 (Sask. C.A.); Blake v. Hudson’s Bay Co., [1988] 1 W.W.R. 176 (Man. Q.B.); 755568 Ontario Ltd. v. Linchris Homes Ltd. (1990), 1 O.R. (3d) 649 (Gen. Div.); Rocca Enterprises Ltd. v. University Press of New Brunswick Ltd. (1989), 103 N.B.R. (2d) 224 (Q.B.); Eli Lilly and Co. v. Interpharm Inc. (1993), 161 N.R. 137 (F.C.A.). A number of other decisions are helpfully referenced in W. A. Stevenson and J. E. Côté, Civil Procedure Encyclopedia (2003), vol. 2, at pp. 42-36 et seq., and C. Papile, “The Implied Undertaking Revisited” (2006), 32 Adv. Q. 190, at pp. 194-96.
[28] The need to protect the privacy of the pre-trial discovery is recognized even in common law jurisdictions where there is no implied undertaking. See J. B. Laskin, “The Implied Undertaking” (a paper presented to the CBA-Ontario, CLE Conference on Privilege and Confidential Information in Litigation — Current Developments and Future Trends, October 19, 1991), at pp. 36-40. Rule 26(c) of the United States Federal Rules of Civil Procedure (28 U.S.C.A.) provides that a court may, upon a showing of “good cause”, grant a protective order to maintain the confidentiality of information disclosed during discovery. The practical effect is that the courts routinely make confidentiality orders limited to pre-trial disclosure to protect a party or person being discovered “from annoyance, embarrassment, oppression, or undue burden or expense”. See, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986).
B. Remedies for Breach of the Implied Undertaking
[29] Breach of the undertaking may be remedied by a variety of means including a stay or dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy, contempt proceedings for breach of the undertaking owed to the court. See Lac d’Amiante, at para. 64, and Goodman v. Rossi (1995), 125 D.L.R. (4th) 613 (Ont. C.A.), at p. 624.
C. Exceptional Circumstances May Trump the Implied Undertaking
[30] The undertaking is imposed in recognition of the examinee’s privacy interest, and the public interest in the efficient conduct of civil litigation, but those values are not, of course, absolute. They may, in turn, be trumped by a more compelling public interest. Thus, where the party being discovered does not consent, a party bound by the undertaking may apply to the court for leave to use the information or documents otherwise than in the action, as described in Lac d’Amiante, at para. 77:
Before using information, however, the party in question will have to apply for leave, specifying the purposes of using the information and the reasons why it is justified, and both sides will have to be heard on the application.
In such an application the judge would have access to the documents or transcripts at issue.
D. Applications Should Be Dealt with Expeditiously
[31] The injury to Jade Doucette occurred on November 19, 2001. The police investigation was launched shortly thereafter. Almost four years ago the appellant was (briefly) arrested. Three and a half years ago the present court applications were launched. Over two years ago the appellant was examined for discovery. It is apparent that in many of these cases delay will defeat the purpose of the application. It is important that they proceed expeditiously.
E. Criteria on the Application for a Modification or Variance of the Implied Undertaking
[32] An application to modify or relieve against an implied undertaking requires an applicant to demonstrate to the court on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation. In a case like the present, of course, there weighs heavily in the balance the right of a suspect to remain silent in the face of a police investigation, and the right not to be compelled to incriminate herself. The chambers judge took the view (I think correctly) that in this case that factor was decisive. In other cases the mix of competing values may be different. What is important in each case is to recognize that unless an examinee is satisfied that the undertaking will only be modified or varied by the court in exceptional circumstances, the undertaking will not achieve its intended purpose.
[33] Reference was made to Crest Homes plc v. Marks, [1987] 2 All E.R. 1074, where Lord Oliver said, on behalf of the House of Lords, that the authorities “illustrate no general principle beyond this, that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery” (p. 1083). I would prefer to rest the discretion on a careful weighing of the public interest asserted by the applicant (here the prosecution of a serious crime) against the public interest in protecting the right against self-incrimination as well as upholding a litigant’s privacy and promoting an efficient civil justice process. What is important is the identification of the competing values, and the weighing of one in the light of the others, rather than setting up an absolute barrier to occasioning any “injustice to the person giving discovery”. Prejudice, possibly amounting to injustice, to a particular litigant may exceptionally be held justified by a higher public interest, as in the case of the accused whose solicitor-client confidences were handed over to the police in Smith v. Jones, [1999] 1 S.C.R. 455, a case referred to in the cou

Court headnote

Juman v. Doucette Collection Supreme Court Judgments Date 2008-03-06 Neutral citation 2008 SCC 8 Report [2008] 1 SCR 157 Case number 31590 Judges McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall On appeal from British Columbia Subjects Civil procedure Notes SCC Case Information: 31590 Decision Content SUPREME COURT OF CANADA Citation: Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8 Date: 20080306 Docket: 31590 Between: Suzette F. Juman also known as Suzette McKenzie Appellant v. Jade Kathleen Ledenko Doucette, by her litigation guardian Greg Bertram, Chief Constable of the Vancouver Police Department, Attorney General of Canada and Attorney General of British Columbia Respondents Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. Reasons for Judgment: (paras. 1 to 59) Binnie J. (McLachlin C.J. and Bastarache, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring) ______________________________ Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8 Suzette F. Juman also known as Suzette McKenzie Appellant v. Jade Kathleen Ledenko Doucette, by her litigation guardian Greg Bertram, Chief Constable of the Vancouver Police Department, Attorney General of Canada and Attorney General of British Columbia Respondents Indexed as: Juman v. Doucette Neutral citation: 2008 SCC 8. File No.: 31590. 2007: November 15; 2008: March 6. Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. on appeal from the court of appeal for british columbia Civil procedure — Discovery — Implied undertaking of confidentiality — Collateral use of discovery information — Discovery information thought to disclose criminal acts — Underlying civil claim settled after discovery — Authorities seeking to obtain information disclosed during pre‑trial discovery — Whether Attorney General has standing to seek to vary implied undertaking to which he is not party — If so, whether application should be rejected in circumstances of this case. Civil procedure — Discovery — Implied undertaking of confidentiality — Scope of “implied undertaking” rule. The appellant, a childcare worker, provided day-care services in her home. A 16‑month‑old child suffered a seizure while in her care. The child was later determined to have suffered a brain injury. A civil action claiming negligence was commenced. The Vancouver Police started a criminal investigation, which is still ongoing. The appellant moved, prior to discovery, to prevent the authorities from accessing her discovery without further court order. She relied on the parties’ implied undertaking to the court not to use documents or answers on discovery for any purpose other than securing justice in the civil proceedings in which the answers were compelled, whether or not such documents or answers were in their origin confidential or incriminatory in nature. The Attorney General of British Columbia brought a cross‑motion to vary the undertaking to permit the authorities to gain access to the discovery transcripts. At discovery, the appellant claimed the protection of the Canadian and British Columbia Evidence Acts and the Canadian Charter of Rights and Freedoms . The transcripts are now in the possession of the parties and/or their counsel. After discovery, the underlying claim settled. The appellant’s discovery was never entered into evidence at a trial. Its contents were not disclosed in open court. The chambers judge found that the implied undertaking extended to evidence of crimes and concluded that it was not open to the police to seize the transcript under a search warrant. The Court of Appeal set aside the decision of the chambers judge. In its view, the implied undertaking rule “does not extend to bona fide disclosure of criminal conduct”. Accordingly, the parties were at liberty to disclose the appellant’s discovery evidence to the police. The authorities could also obtain it by any lawful investigative means, including a search warrant or a subpoena duces tecum. Held: The appeal should be allowed. A party is not in general free to disclose discovery evidence of what they view as criminal conduct to the police or other strangers to the litigation without a court order. The root of the implied undertaking is the statutory compulsion on a party such as the appellant to participate fully in pre‑trial oral and documentary discovery. If the opposing party seeks information that is relevant and is not protected by privilege, it must be disclosed even if it tends to self‑incrimination. While the public interest in getting at the truth in a civil action outweighs the examinee’s privacy interest, the latter is entitled to a measure of protection, and the law thus requires that the invasion of privacy should generally be limited to the level of disclosure necessary to do justice in the civil litigation in which the disclosure is made. The rules of discovery were not intended to constitute litigants as private attorneys general. [3] [20] [25] [43] Here, because of the facts, much of the appellant’s argument focussed on her right to protection against self‑incrimination, but the implied undertaking rule is broader than that. It includes the wrongdoing of persons other than the examinee and covers innocuous information that is neither confidential nor discloses any wrongdoing at all. [5] Contrary to the submission of the Attorney General, the implied undertaking rule does not conflict with the “open court” principle. Pre‑trial discovery does not take place in open court. Nor does the question of judicial accountability arise in pre‑trial discoveries. The situations are simply not analogous. [21‑22] The court has the discretionary power to grant exemptions from or variations to the undertaking, but unless an examinee is satisfied that such exemptions or variations will only be granted in exceptional circumstances, the undertaking will not achieve its intended purpose. Accordingly, unless a statutory exemption overrides the implied undertaking, the onus will be on the person applying for the exemption or variation to demonstrate on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy, protection against self‑incrimination, and the efficient conduct of civil litigation. The factors that may be taken into account include public safety concerns or contradictory testimony by the examinee about the same matters in different proceedings. In situations of immediate and serious danger, the applicant may be justified in going directly to the police without a court order. However, the availability of an exemption relating to discovery disclosing criminal offences not amounting to serious and immediate danger should be left with the courts. The public interest in the prosecution of crime will not necessarily trump a citizen’s privacy interest in statutorily compelled information. [14] [32‑33] [38‑41] [44] [48] It is important that applications for variation proceed expeditiously. Persons entitled to notice of these applications will be for the chambers judge to decide on the facts, but normally, only parties to the litigation will be entitled to notice of such an application, not the police nor the media. [31] [52] The action here has been settled, but the policies reflected in the implied undertaking remain undiminished. If the parents of the victim or other party wished to disclose the appellant’s transcript to the police, they could have made an application to the court for permission to make disclosure, but none of them did so, and none of them is party to the current proceeding. [5] [22] In this case, the Attorney General of British Columbia has standing to seek to vary an implied undertaking to which he is not a party, but the application should be rejected on the facts. His objective was to obtain evidence that would help assist the police investigation, and possibly to incriminate the appellant. It would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant’s right to silence and the protection against self‑incrimination afforded her by the criminal law. [53] [58] On the other hand, the Court of Appeal correctly held that the implied undertaking is no bar to persons not party to it, and the appellant’s discovery transcript and documents are not privileged or exempt from seizure. The authorities have available to them the usual remedies of subpoena duces tecum or a search warrant under the Criminal Code . However, if at this stage they do not have the grounds to obtain a search warrant, it is not open to them to build their case on the appellant’s compelled testimony. [5] [55‑56] The search warrant, where available, only gives the police access to the discovery material. It does not authorize its use in any proceedings that may be initiated. If criminal charges are brought, the prosecution may also compel a witness to produce a copy of the documents or transcripts in question from his or her possession by a subpoena duces tecum. The trial judge would then determine what, if any, use could be made of the material, having regard to the appellant’s Charter rights and any other relevant considerations. None of these issues arise for decision on the present appeal. [56‑57] Cases Cited Not followed: Home Office v. Harman, [1983] 1 A.C. 280; distinguished: Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; referred to: Hunt v. T & N plc (1995), 4 B.C.L.R. (3d) 110; Ross v. Henriques, [2007] B.C.J. No. 2023 (QL), 2007 BCSC 1381; Lac d’Amiante du Québec Ltée v. 2858‑0702 Québec Inc., [2001] 2 S.C.R. 743, 2001 SCC 51; Stickney v. Trusz (1973), 2 O.R. (2d) 469, aff’d (1974), 3 O.R. (2d) 538 (Div. Ct.), aff’d (1974), 3 O.R. (2d) 538 (C.A.), leave to appeal ref’d, [1974] S.C.R. xii; Tricontinental Investments Co. v. Guarantee Co. of North America (1982), 39 O.R. (2d) 614; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; Slavutych v. Baker, [1976] 1 S.C.R. 254; Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1; Shaw Estate v. Oldroyd, [2007] B.C.J. No. 1310 (QL), 2007 BCSC 866; Rayman Investments and Management Inc. v. Canada Mortgage and Housing Corp., [2007] B.C.J. No. 628 (QL), 2007 BCSC 384; Wilson v. McCoy (2006), 59 B.C.L.R. (4th) 1, 2006 BCSC 1011; Laxton Holdings Ltd. v. Madill, [1987] 3 W.W.R. 570; Blake v. Hudson’s Bay Co., [1988] 1 W.W.R. 176; 755568 Ontario Ltd. v. Linchris Homes Ltd. (1990), 1 O.R. (3d) 649; Rocca Enterprises Ltd. v. University Press of New Brunswick Ltd. (1989), 103 N.B.R. (2d) 224; Eli Lilly and Co. v. Interpharm Inc. (1993), 161 N.R. 137; Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (1986); Goodman v. Rossi (1995), 125 D.L.R. (4th) 613; Crest Homes plc v. Marks, [1987] 2 All E.R. 1074; Smith v. Jones, [1999] 1 S.C.R. 455; Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R. (2d) 260; Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323; Harris v. Sweet, [2005] B.C.J. No. 1520 (QL), 2005 BCSC 998; Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 27 C.P.C. (4th) 252; Lubrizol Corp. v. Imperial Oil Ltd. (1990), 33 C.P.R. (3d) 49; Livent Inc. v. Drabinsky (2001), 53 O.R. (3d) 126; R. v. Henry, [2005] 3 S.C.R. 609, 2005 SCC 76; R. v. Nedelcu (2007), 41 C.P.C. (6th) 357; Rank Film Distributors Ltd. v. Video Information Centre, [1982] A.C. 380; Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Campbell, [1999] 1 S.C.R. 565; Attorney‑General for Gibraltar v. May, [1999] 1 W.L.R. 998; Bank of Crete S.A. v. Koskotas (No. 2), [1992] 1 W.L.R. 919; Sybron Corp. v. Barclays Bank Plc., [1985] 1 Ch. 299; Bailey v. Australian Broadcasting Corp., [1995] 1 Qd. R. 476; Commonwealth v. Temwood Holdings Pty Ltd. (2001), 25 W.A.R. 31, [2001] WASC 282; Perrin v. Beninger, [2004] O.J. No. 2353 (QL); Tyler v. M.N.R., [1991] 2 F.C. 68; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Serendip Physiotherapy Clinic (2004), 189 C.C.C. (3d) 417. Statutes and Regulations Cited Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 5 . Canadian Charter of Rights and Freedoms, ss. 7 , 11 (c), 13 . Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, s. 14. Criminal Code, R.S.C. 1985, c. C‑46, ss. 196 , 487 . Evidence Act, R.S.B.C. 1996, c. 124, s. 4. Federal Rules of Civil Procedure, 28 U.S.C.A. r. 26(c). Queen’s Bench Rules, M.R. 553/88, r. 30.1. Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 30.1. Rules of Civil Procedure (Prince Edward Island), r. 30.1. Rules of Court, B.C. Reg. 221/90, rr. 2(5), 27, 44, 56(1), (4), 60(41), (42), 64(1). Authors Cited Laskin, John B. “The Implied Undertaking”. A paper presented to the Canadian Bar Association — Ontario at a Continuing Legal Education Conference on Privilege and Confidential Information in Litigation — Current Developments and Future Trends, October 19, 1991. Papile, Cristiano. “The Implied Undertaking Revisited” (2006), 32 Adv. Q. 190. Stevenson, William A., and Jean E. Côté. Civil Procedure Encyclopedia, vol. 2. Edmonton: Juriliber, 2003. APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Low and Kirkpatrick JJ.A.) (2006), 269 D.L.R. (4th) 654, [2006] 9 W.W.R. 687, 227 B.C.A.C. 140, 374 W.A.C. 140, 55 B.C.L.R. (4th) 66, 31 C.P.C. (6th) 149, [2006] B.C.J. No. 1176 (QL), 2006 BCCA 262, setting aside a decision of Shaw J., [2005] 11 W.W.R. 539, 45 B.C.L.R. (4th) 108, 15 C.P.C. (6th) 211, 129 C.R.R. (2d) 109, [2005] B.C.J. No. 589 (QL), 2005 BCSC 400. Appeal allowed. Brian T. Ross and Karen L. Weslowski, for the appellant. No one appeared for the respondent Jade Kathleen Ledenko Doucette, by her litigation guardian Greg Bertram. Karen F. W. Liang, for the respondent the Chief Constable of the Vancouver Police Department. Michael H. Morris, for the respondent the Attorney General of Canada. J. Edward Gouge, Q.C., and Natalie Hepburn Barnes, for the respondent the Attorney General of British Columbia. The judgment of the Court was delivered by [1] Binnie J. — The principal issue raised on this appeal is the scope of the “implied undertaking rule” under which evidence compelled during pre-trial discovery from a party to civil litigation can be used by the parties only for the purpose of the litigation in which it was obtained. The issue arises in the context of alleged child abuse, a matter of great importance and concern in our society. The Attorney General of British Columbia rejects the existence of an implied undertaking rule in British Columbia (factum, at para. 4). Alternatively, if there is such a rule, he says it does not extend to bona fide disclosures of criminal activity. In his view the parties may, without court order, share with the police any discovery documents or oral testimony that tend to show criminal misconduct. [2] In the further alternative, the Attorney General argues that the existence of an implied undertaking would not in any way inhibit the ability of the authorities, who are not parties to it, to obtain a subpoena duces tecum or to seize documents or a discovery transcript pursuant to a search warrant issued under s. 487 of the Criminal Code, R.S.C. 1985, c. C-46 . [3] The British Columbia Court of Appeal held that the implied undertaking rule “does not extend to bona fide disclosure of criminal conduct” ((2006), 55 B.C.L.R. (4th) 66, 2006 BCCA 262, at para. 56). This ruling is stated too broadly, in my opinion. The rationale of the implied undertaking rule rests on the statutory compulsion that requires a party to make documentary and oral discovery regardless of privacy concerns and whether or not it tends to self-incriminate. The more serious the criminality, the greater would be the reluctance of a party to make disclosure fully and candidly, and the greater is the need for broad protection to facilitate his or her cooperation in civil litigation. It is true, as the chambers judge acknowledged, that there is an “immediate and serious danger” exception to the usual requirement for a court order prior to disclosure ((2005), 45 B.C.L.R. (4th) 108, 2005 BCSC 400, at paras. 28-29), but the exception is much narrower than is suggested by the dictum of the Court of Appeal, and it does not cover the facts of this case. In my view a party is not in general free to go without a court order to the police or any non-party with what it may view as “criminal conduct”, which is a label that covers many shades of suspicion or rumour or belief about many different offences from the mundane to the most serious. The qualification added by the Court of Appeal, namely that the whistle blower must act bona fides, does not alleviate the difficulty. Many a tip to the police is tinged with self-interest. At what point does the hope of private advantage rob the communication of its bona fides? The lines need to be clear because, as the Court of Appeal itself noted, “non-bona fide disclosure of alleged criminal conduct would attract serious civil sanctions for contempt” (para. 56 (emphasis added)). [4] Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges. [5] Here, because of the facts, much of the appellant’s argument focussed on her right to protection against self-incrimination, but the implied undertaking rule is broader than that. It includes the wrongdoing of persons other than the examinee and covers innocuous information that is neither confidential nor discloses any wrongdoing at all. Here, if the parents of the victim or other party wished to disclose the appellant’s transcript to the police, he or she or they could have made an application to the B.C. Supreme Court for permission to make disclosure, but none of them did so, and none of them is party to the current proceeding. The applicants are the Vancouver Police Department and the Attorney General of British Columbia supported by the Attorney General of Canada. None of these authorities is party to the undertaking. They have available to them the usual remedies of subpoena duces tecum or a search warrant under the Criminal Code . If at this stage they do not have the grounds to obtain a search warrant, it is not open to them to build their case on the compelled testimony of the appellant. Further, even if the authorities were thereby to obtain access to this compelled material, it would still be up to the court at the proceedings (if any) where it is sought to be introduced to determine its admissibility. [6] I agree with the chambers judge that the balance of interests relevant to whether disclosure should be made by a party of alleged criminality is better evaluated by a court than by one of the litigants who will generally be self-interested. Discoveries (both oral and documentary) are likely to run more smoothly if none of the disputants are in a position to go without a court order to the police, or regulators or other authorities with their suspicions of wrongdoing, or to use the material obtained for any other purpose collateral or ulterior to the action in which the discovery is obtained. Of course the implied undertaking does not bind the Attorney General and the police (who are not parties to it) from seeking a search warrant in the ordinary way to obtain the discovery transcripts if they have the grounds to do so. Apparently, no such application has been made. At this stage the matter has proceeded only to the point of determining whether or not the implied undertaking permits the “bona fide disclosure of criminal conduct” without court order (B.C.C.A., at para. 56). In my view it does not do so in the circumstances disclosed here. I would allow the appeal. I. Facts [7] The appellant, a childcare worker, provided day-care services in her home. A 16-month-old child, Jade Doucette, suffered a seizure while in the appellant’s care. The child was later determined to have suffered a brain injury. She and her parents sued the owners and operators of the day-care centre for damages, alleging that Jade’s injury resulted from its negligence and that of the appellant. [8] The appellant’s defence alleges, in part, that Jade suffered a number of serious mishaps, including a bicycle accident while riding as a passenger with her father, none of which involved the appellant, and none of which were disclosed to the appellant when the child was delivered into her care (Statement of Defence, at para. 3). [9] The Vancouver Police have for several years been conducting an investigation, which is still ongoing. In May 2004, the Vancouver Police arrested the appellant. She was questioned in the absence of her counsel (A.R., at p. 179). She was later released. In August 2004, the appellant and her husband received notices that their private communications had been intercepted by the police pursuant to s. 196 of the Criminal Code . To date, no criminal charges have been laid. In furtherance of that investigation, the authorities seek access to the appellant’s discovery transcript. [10] In November 2004, the appellant brought an interlocutory motion to prohibit the parties to the civil proceeding from providing the transcripts of discovery (which had not yet been held) to the police. She also sought to prevent the release of information from the transcripts to the police or the Attorney General of British Columbia and a third motion to prohibit the Attorney General of British Columbia, the police and the RCMP from obtaining and using copies of the transcripts and solicitor’s notes without further court order. She relied upon the implied undertaking rule. [11] The Attorney General of British Columbia opposed the appellant’s motions and brought his own cross-motion for an order (if necessary) varying the legal undertaking to permit release of the transcripts to the police. He also brought a second motion for an order permitting the police to apply for the transcripts by way of search warrant, subpoena or other investigative means in the usual way. [12] The appellant was examined for discovery for four days between June 2005 and September 2006. She claimed the protection of the Canada Evidence Act, R.S.C. 1985, c. C-5 , the British Columbia Evidence Act, R.S.B.C. 1996, c. 124, and (though an explicit claim was not necessary) of the Canadian Charter of Rights and Freedoms , and says that she answered all the appropriate questions put to her. The transcripts are now in the possession of the parties and/or their counsel. [13] In 2006, the underlying claim was settled. The appellant’s discovery was never entered into evidence at a trial nor its contents disclosed in open court. II. Judicial History A. Supreme Court of British Columbia (Shaw J.) (2005), 45 B.C.L.R. (4th) 108, 2005 BCSC 400 [14] The chambers judge observed that an examination for discovery is statutorily compelled testimony by rule 27 of the B.C. Rules of Court, B.C. Reg. 221/90. As a general rule, there exists in British Columbia an implied undertaking in civil actions that the parties and their lawyers will use discovery evidence strictly for the purposes of the court case. Discovery exists because getting at the truth in the pursuit of justice is an important social goal, but so (he held) is limiting the invasion of the examinee’s privacy. Evidence taken on oral discovery comes within the scope of the undertaking. He noted that the court has the discretionary power to grant exemptions from or variations to the undertaking, and that in the exercise of that discretion courts must balance the need for disclosure against the right to privacy. [15] The chambers judge rejected the contention that the implied undertaking does not apply to evidence of crimes. Considerations of practicality supported keeping evidence of crimes within the scope of the undertaking because such evidence could vary from mere suspicion to blatant admissions and from minor to the most serious offences. It was better to leave the discretionary power of relief to the courts. [16] As to the various arguments asserted by the appellant under ss. 7 , 11 (c) and 13 of the Charter , the chambers judge concluded that “[t]he state is forbidden to use its investigatory powers to violate the confidentiality requirement of solicitor-client privilege; so too, in my view, should the state be forbidden to violate the confidentiality protected by discovery privilege” (para. 62). In his view, it was not open to the police to seize the transcript under a search warrant. B. Court of Appeal for British Columbia (Newbury, Low and Kirkpatrick JJ.A.) (2006), 55 B.C.L.R. (4th) 66, 2006 BCCA 262 [17] The Court of Appeal allowed the appeal. In its view, the parties were at liberty to disclose the appellant’s discovery evidence to the police to assist in the criminal investigation. Further, the authorities could obtain the discovery evidence by lawful investigative means such as subpoenas and search warrants. [18] Kirkpatrick J.A., speaking for a unanimous court, noted the English law on the implied undertaking of confidentiality had been applied in British Columbia only in recent years. See Hunt v. T & N plc (1995), 4 B.C.L.R. (3d) 110. In that case, however, the British Columbia Court of Appeal had held that “[t]he obligation the law imposes is one of confidentiality from improper publication. It does not supersede all other legal, social or moral duties” (para. 65; quoted at para. 32). Thus, in Kirkpatrick J.A.’s opinion, “the undertaking in the action cannot form a shield from the detection and prosecution of crimes in which the public has an overriding interest” (para. 48). [19] Kirkpatrick J.A. then turned to the Charter issues in the case. She noted that no charges had been laid against the appellant and therefore that ss. 11 (c) (which applies to persons “charged with an offence”) and 13 (which provides use immunity) were not engaged. The appellant was not in any imminent danger of deprivation of her right to liberty or security, and therefore any s. 7 claim was premature. Kirkpatrick J.A. declared that an implied undertaking, being just a rule of civil procedure, should not be given “constitutional status”. Discovery material is not immune to search or seizure. The appeal was therefore allowed. III. Analysis [20] The root of the implied undertaking is the statutory compulsion to participate fully in pre-trial oral and documentary discovery. If the opposing party seeks information that is relevant and is not protected by privilege, it must be disclosed even if it tends to self-incrimination. See British Columbia Rules of Court, rr. 27(2), 44, 60(41), 60(42) and 64(1); Ross v. Henriques, [2007] B.C.J. No. 2023 (QL), 2007 BCSC 1381, at paras. 180-81. In Quebec, see Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., [2001] 2 S.C.R. 743, 2001 SCC 51, at para. 42. In Ontario, see Stickney v. Trusz (1973), 2 O.R. (2d) 469 (H.C.J.), aff’d (1974), 3 O.R. (2d) 538 (Div. Ct.), aff’d (1974), 3 O.R. (2d) 538 (p. 539) (C.A.), leave to appeal ref’d, [1974] S.C.R. xii. The rule in common law jurisdictions was affirmed post-Charter in Tricontinental Investments Co. v. Guarantee Co. of North America (1982), 39 O.R. (2d) 614 (H.C.J.), and has been applied to public inquiries, Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97. [21] The Attorney General of British Columbia submits that Lac d’Amiante, which was based on the Quebec Code of Civil Procedure, R.S.Q., c. C-25, “was wrongly decided” (factum, at para. 16). An implied undertaking not to disclose pre-trial documentary and oral discovery for purposes other than the litigation in which it was obtained is, he argues, contrary to the “open court” principle stated in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, and Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (factum, at para. 6). The Vancouver Police support this position (factum, at para. 48). The argument is based on a misconception. Pre-trial discovery does not take place in open court. The vast majority of civil cases never go to trial. Documents are inspected or exchanged by counsel at a place of their own choosing. In general, oral discovery is not conducted in front of a judge. The only point at which the “open court” principle is engaged is when, if at all, the case goes to trial and the discovered party’s documents or answers from the discovery transcripts are introduced as part of the case at trial. [22] In Attorney General of Nova Scotia v. MacIntyre, relied on by the Vancouver Police as well as by the Attorney General of British Columbia, the contents of the affidavit in support of the search warrant application were made public, but not until after the search warrant had been executed, and “the purposes of the policy of secrecy are largely, if not entirely, accomplished” (p. 188). At that point the need for public access and public scrutiny prevail. Here the action has been settled but the policies reflected in the implied undertaking (privacy and the efficient conduct of civil litigation generally) remain undiminished. Nor is Edmonton Journal helpful to the respondents. In that case the Court struck down a “sweeping” Alberta prohibition against publication of matrimonial proceedings, including publication of the “comments of counsel and the presiding judge”. In the face of such prohibition, the court asked, “[h]ow then is the community to know if judges conduct themselves properly” (p. 1341). No such questions of state accountability arise in pre-trial discoveries. The situations are simply not analogous. A. The Rationale for the Implied Undertaking [23] Quite apart from the cases of exceptional prejudice, as in disputes about trade secrets or intellectual property, which have traditionally given rise to express confidentiality orders, there are good reasons to support the existence of an implied (or, in reality, a court-imposed) undertaking. [24] In the first place, pre-trial discovery is an invasion of a private right to be left alone with your thoughts and papers, however embarrassing, defamatory or scandalous. At least one side in every lawsuit is a reluctant participant. Yet a proper pre-trial discovery is essential to prevent surprise or “litigation by ambush”, to encourage settlement once the facts are known, and to narrow issues even where settlement proves unachievable. Thus, rule 27(22) of the B.C. Rules of Court compels a litigant to answer all relevant questions posed on an examination for discovery. Failure to do so can result in punishment by way of imprisonment or fine pursuant to rules 56(1), 56(4) and 2(5). In some provinces, the rules of practice provide that individuals who are not even parties can be ordered to submit to examination for discovery on issues relevant to a dispute in which they may have no direct interest. It is not uncommon for plaintiff’s counsel aggressively to “sue everyone in sight” not with any realistic hope of recovery but to “get discovery”. Thus, for the out-of-pocket cost of issuing a statement of claim or other process, the gate is swung open to investigate the private information and perhaps highly confidential documents of the examinee in pursuit of allegations that might in the end be found to be without any merit at all. [25] The public interest in getting at the truth in a civil action outweighs the examinee’s privacy interest, but the latter is nevertheless entitled to a measure of protection. The answers and documents are compelled by statute solely for the purpose of the civil action and the law thus requires that the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy that purpose and that purpose alone. Although the present case involves the issue of self-incrimination of the appellant, that element is not a necessary requirement for protection. Indeed, the disclosed information need not even satisfy the legal requirements of confidentiality set out in Slavutych v. Baker, [1976] 1 S.C.R. 254. The general idea, metaphorically speaking, is that whatever is disclosed in the discovery room stays in the discovery room unless eventually revealed in the courtroom or disclosed by judicial order. [26] There is a second rationale supporting the existence of an implied undertaking. A litigant who has some assurance that the documents and answers will not be used for a purpose collateral or ulterior to the proceedings in which they are demanded will be encouraged to provide a more complete and candid discovery. This is of particular interest in an era where documentary production is of a magnitude (“litigation by avalanche”) as often to preclude careful pre-screening by the individuals or corporations making production. See Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1 (C.A.), per Esson J.A. dissenting, at pp. 10-11. [27] For good reason, therefore, the law imposes on the parties to civil litigation an undertaking to the court not to use the documents or answers for any purpose other than securing justice in the civil proceedings in which the answers were compelled (whether or not such documents or answers were in their origin confidential or incriminatory in nature). See Home Office v. Harman, [1983] 1 A.C. 280 (H.L.); Lac d’Amiante; Hunt v. T & N plc; Shaw Estate v. Oldroyd, [2007] B.C.J. No. 1310 (QL), 2007 BCSC 866, at para. 21; Rayman Investments and Management Inc. v. Canada Mortgage and Housing Corp., [2007] B.C.J. No. 628 (QL), 2007 BCSC 384; Wilson v. McCoy (2006), 59 B.C.L.R. (4th) 1, 2006 BCSC 1011; Laxton Holdings Ltd. v. Madill, [1987] 3 W.W.R. 570 (Sask. C.A.); Blake v. Hudson’s Bay Co., [1988] 1 W.W.R. 176 (Man. Q.B.); 755568 Ontario Ltd. v. Linchris Homes Ltd. (1990), 1 O.R. (3d) 649 (Gen. Div.); Rocca Enterprises Ltd. v. University Press of New Brunswick Ltd. (1989), 103 N.B.R. (2d) 224 (Q.B.); Eli Lilly and Co. v. Interpharm Inc. (1993), 161 N.R. 137 (F.C.A.). A number of other decisions are helpfully referenced in W. A. Stevenson and J. E. Côté, Civil Procedure Encyclopedia (2003), vol. 2, at pp. 42-36 et seq., and C. Papile, “The Implied Undertaking Revisited” (2006), 32 Adv. Q. 190, at pp. 194-96. [28] The need to protect the privacy of the pre-trial discovery is recognized even in common law jurisdictions where there is no implied undertaking. See J. B. Laskin, “The Implied Undertaking” (a paper presented to the CBA-Ontario, CLE Conference on Privilege and Confidential Information in Litigation — Current Developments and Future Trends, October 19, 1991), at pp. 36-40. Rule 26(c) of the United States Federal Rules of Civil Procedure (28 U.S.C.A.) provides that a court may, upon a showing of “good cause”, grant a protective order to maintain the confidentiality of information disclosed during discovery. The practical effect is that the courts routinely make confidentiality orders limited to pre-trial disclosure to protect a party or person being discovered “from annoyance, embarrassment, oppression, or undue burden or expense”. See, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986). B. Remedies for Breach of the Implied Undertaking [29] Breach of the undertaking may be remedied by a variety of means including a stay or dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy, contempt proceedings for breach of the undertaking owed to the court. See Lac d’Amiante, at para. 64, and Goodman v. Rossi (1995), 125 D.L.R. (4th) 613 (Ont. C.A.), at p. 624. C. Exceptional Circumstances May Trump the Implied Undertaking [30] The undertaking is imposed in recognition of the examinee’s privacy interest, and the public interest in the efficient conduct of civil litigation, but those values are not, of course, absolute. They may, in turn, be trumped by a more compelling public interest. Thus, where the party being discovered does not consent, a party bound by the undertaking may apply to the court for leave to use the information or documents otherwise than in the action, as described in Lac d’Amiante, at para. 77: Before using information, however, the party in question will have to apply for leave, specifying the purposes of using the information and the reasons why it is justified, and both sides will have to be heard on the application. In such an application the judge would have access to the documents or transcripts at issue. D. Applications Should Be Dealt with Expeditiously [31] The injury to Jade Doucette occurred on November 19, 2001. The police investigation was launched shortly thereafter. Almost four years ago the appellant was (briefly) arrested. Three and a half years ago the present court applications were launched. Over two years ago the appellant was examined for discovery. It is apparent that in many of these cases delay will defeat the purpose of the application. It is important that they proceed expeditiously. E. Criteria on the Application for a Modification or Variance of the Implied Undertaking [32] An application to modify or relieve against an implied undertaking requires an applicant to demonstrate to the court on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation. In a case like the present, of course, there weighs heavily in the balance the right of a suspect to remain silent in the face of a police investigation, and the right not to be compelled to incriminate herself. The chambers judge took the view (I think correctly) that in this case that factor was decisive. In other cases the mix of competing values may be different. What is important in each case is to recognize that unless an examinee is satisfied that the undertaking will only be modified or varied by the court in exceptional circumstances, the undertaking will not achieve its intended purpose. [33] Reference was made to Crest Homes plc v. Marks, [1987] 2 All E.R. 1074, where Lord Oliver said, on behalf of the House of Lords, that the authorities “illustrate no general principle beyond this, that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery” (p. 1083). I would prefer to rest the discretion on a careful weighing of the public interest asserted by the applicant (here the prosecution of a serious crime) against the public interest in protecting the right against self-incrimination as well as upholding a litigant’s privacy and promoting an efficient civil justice process. What is important is the identification of the competing values, and the weighing of one in the light of the others, rather than setting up an absolute barrier to occasioning any “injustice to the person giving discovery”. Prejudice, possibly amounting to injustice, to a particular litigant may exceptionally be held justified by a higher public interest, as in the case of the accused whose solicitor-client confidences were handed over to the police in Smith v. Jones, [1999] 1 S.C.R. 455, a case referred to in the cou

Juman v. Doucette

Court headnote

Full judgment (source text)

Multani v Commission scolaire Marguerite-Bourgeoys

Related cases

Multani v Commission scolaire Marguerite-Bourgeoys

Halpern v Canada (Attorney General)

Reference re Public Service Employee Relations Act (Alberta)

R v Big M Drug Mart Ltd

Trinity Western University v Law Society of Upper Canada

R v NS

Exam & revision prep

Juman v. Doucette

Court headnote

Full judgment (source text)

Multani v Commission scolaire Marguerite-Bourgeoys

Related cases

Multani v Commission scolaire Marguerite-Bourgeoys

Halpern v Canada (Attorney General)

Reference re Public Service Employee Relations Act (Alberta)

R v Big M Drug Mart Ltd

Trinity Western University v Law Society of Upper Canada

R v NS

Exam & revision prep