The Deemed Undertaking rule (30.1) functions to prevent information gathered during discovery from being disclosed. The rule itself serves to protect information that respondents may be forced to divulge during discovery by ensuring that any information cannot be used in other proceedings. It is applied by default to all information revealed during discovery, be it written or oral discovery, medical examinations or inspections. Those seeking relief from the rule are required to petition the courts. The rule is a relatively new addition to Canadian Law, having only first been discussed domestically in 1985. It is codified in only three jurisdictions but exists elsewhere as an implied undertaking within the common law framework. The fact that it is not codified in every jurisdiction should not undermine its import and centrality to the discovery process. The rule states that:
(3) All parties and their counsel are deemed to undertake not to use evidence or information to which this Rule applies for any purpose other than those of the proceeding in which the evidence was obtained.
[...] The implication is that the rule serves not only to protect particular parties from unwanted disclosure even in such cases where criminal proceedings may exist or be warranted but that the integrity of the rule itself is necessary to protect the purpose of the discovery process. The courts, in building on Morden's decisions in Goodman v. Rossi, have seen fit to place on the petitioner the burden of demonstrating not only that the injustice borne by non-disclosure is greater than the injustice suffered in the event of disclosure, but also that the integrity of justice itself is served by setting aside the rule. [...]
[...] In short, Binnie asserted than an implied undertaking should not permit a witness to play games with the administration of justice. Other Jurisdictions While the deemed undertaking exists in one form or another in every jurisdiction in Canada, it is a relatively recent addition to codified legal frameworks and general exists as a creature of common law. That said, it is important to recognize the anomalous nature of the rule in the context of other jurisdictions. While the integrity of rule 30.1 has been upheld by the SCC and its narrow exceptions limited to a the “interest of justice vs. [...]
[...] The courts, on the basis of Subrule and through the mechanism allowed by Subrule specifically to weigh the interest of justice against the prejudice that would result against the party making the disclosure have been loathe to set aside the Deemed Undertaking rule, a sign of its central importance to the discovery process. A review of some relevant case law serves to underline these facts and articulate its application. Goodman v. Rossi The plaintiff in this case sought leave to use information obtained in discovery related to said plaintiff's wrongful dismissal case, in a separate defamation case. [...]
[...] Ontario: Rules of Civil Procedure, R.R.O Reg r Goodman v. Rossi CanLII 1888 (ON C.A.) 1995-06-27. Court of Appeal for Ontario 3. Livent Inc. v. Drabinsky CanLII 28039 (ON S.C.) [...]
[...] The AG had applied for relief from the Implied Undertaking rule and sought leave to provide police with evidence obtained during discovery in civil litigation. The Chambers Judge had refused the request but this decision had been overturned on appeal, in part because the appeals court ruled that the implied undertaking rule could not be used to hide criminal wrongdoing. In its decision on Juman v. Doucette the Supreme Court found that setting aside the rule required a petitioner to “demonstrate on a balance of probabilities the existence of a public interest of greater weight than the values of the implied undertaking is designed to protect, namely privacy, protection against self- incrimination, and the efficient conduct of civil litigation.” In this case, the SCC found that the rule should not be set aside to allow for criminal procedure to flow from evidence obtained in discovery to do so would undermine the appellant's right to silence and protection from self-incrimination. [...]
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