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Supreme Court Considers Implied Undertaking Rule
Published in the March 2008 issue of Litigation Notes - View Article
Summary: Day-care worker sued by parents of a child who was allegedly injured while in her care. Police also investigating the possibility of laying criminal charges. Whether police should have access to transcripts of examinations for discovery given in civil action or whether protected by the implied undertaking rule .
The Supreme Court of Canada recently had occasion to consider the scope of the “implied undertaking rule” which is the rule that provides that evidence which is obtained through the pre-trial discovery process cannot be used by the parties to the litigation for any purpose other than the litigation itself.
In this case, the Appellant, Suzette Jurman, operated a day-care in her home. A 16 month old child suffered a seizure while in her care and was later determined to have suffered a brain injury. The child’s parents commenced a civil action for damages in the course of which Ms. Jurman was examined for discovery. At the same time, the Vancouver police were investigating her with respect to the possibility that she was guilty of a criminal offence. Ms. Jurman brought a motion to prevent the police from gaining access to the transcripts of her examination for discovery. The motions judge agreed with her and rejected the argument that the implied undertaking does not apply to evidence of crimes. For practical reasons, evidence of crime should be kept within the scope of the implied undertaking because, as the Supreme Court of Canada reported his decision, “…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.”
The Court of Appeal reversed the motions judge. It held that the police could obtain the discovery evidence by investigative means such as subpoenas and search warrants and the party should be free to make “bona fide disclosure of criminal conduct”.
The matter went to the Supreme Court of Canada where it was heard by the full panel of nine judges and the unanimous decision of the panel was delivered by Justice Binnie. Justice Binnie began by expressing the root of the implied undertaking, which 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.” He then went on to examine the rationale for the rule. He sees two compelling reasons for the application of the rule, the first being protection of the individual’s privacy rights and the second being the encouragement of complete and candid disclosure in the discovery process. On the subject of privacy, Justice Binnie points out that “…pre-trial discovery is an invasion of a private right to be left alone with your thoughts and papers, however embarrassing, defamatory or scandalous”. While effective pre-trial discovery is necessary to prevent “litigation by ambush”, to encourage settlement and to narrow the issues even where settlement cannot be achieved, the fact is that “at least one side in every law suit is a reluctant participant”. Nevertheless, the rules of court require a litigant to answer all relevant questions posed on an examination for discovery, subject to fines or imprisonment for failure to do so. While the public interest in getting to the truth outweighs the individual’s right to privacy, there must be limits and the limit should be that the level of disclosure is only so much as is required for the purposes of the litigation. With respect to the second point, the greater the protection afforded individuals who are examined for discovery, the greater the likelihood that they will provide full and frank answers, without fear of having their answers used for an ulterior or collateral purpose.
Justice Binnie goes on to point out that any person who considers that it is necessary to have access to information obtained on discovery may bring an application to court for the right to vary the implied undertaking rule. In such cases it would be for the applicant to satisfy the court that there is a public interest in disclosure which outweighs the litigant’s right to privacy. He addresses the concern raised by the British Columbia Court of Appeal, to the effect that requiring an application to court could permit the perpetrator of a crime to destroy or hide evidence. Justice Binnie states that this risk can be avoided by permitting the court application to be made ex-parte, ie. without notice to the alleged perpetrator.
Justice Binnie goes on to identify certain circumstances in which it would not be necessary to apply to the Court for leave to vary the implied undertaking rule. One circumstance is where a witness is known to have given contradictory evidence in more than one proceeding. If this information comes to light, testimony given on examination for discovery may be used to impeach the witness in another proceeding.
Justice Binnie also refers to the Smith v. Jones exception. That case involved a psychiatrist who was assessing a client of a criminal defence lawyer. The client confided to the psychiatrist that he had plans to kidnap, rape and kill prostitutes. The information had been obtained by the psychiatrist under the cloak of solicitor-client privilege and he applied to the Court for leave to disclose the information to the police. The Court ruled that in situations such as this the psychiatrist should be at liberty to disclose the information and that in circumstances of “immediate and serious danger” it should be possible to disclose the information to the police without making an application to Court in advance. Justice Binnie states that the same principles should apply in the case of information obtained through examination for discovery.
Justice Binnie also addresses the continuing nature of the implied undertaking. In this case, the Appellant’s case never went to trial and consequently the discovery transcript was never read into evidence at the trial. Had it been read into evidence, the undertaking would have expired, but as it remained in the hands of the parties and their lawyers, the undertaking continued. The fact that settlement had rendered the discovery moot “does not mean that the Appellant’s privacy interest is also moot”.
With respect to whom should receive notice of an application to vary the implied undertaking, Justice Binnie says that it would be up to the judge hearing the application, but that in general, the only parties with a direct interest are the applicant, the deponent and the other parties to the litigation. Neither the police nor the media are entitled to notice of the application.
Justice Binnie went on to conclude that on the facts of this case, there was no basis for varying the implied undertaking rule and the appeal was allowed.
Jurman v. Doucette, 2008 SCC 8 (CanLII)