After guardian of minor Plaintiff in child injury
litigation gave deposition testimony, Canadian Supreme Court holds that, under
Implied Undertaking Rule, lower court should, under circumstances, have denied
attorney general’s request for authority to turn over deposition to police
investigating potential criminal aspects of child’s injury at daycare home
In 2001, Jade Doucette, a 16‑month‑old girl (Plaintiff)
suffered a seizure while in the care of an employee of Wee Watch Day Care
Systems Inc.(Defendant), a daycare organization in Vancouver, B. C. Doctors
later diagnosed the Plaintiff as having suffered a brain injury. On Jade’s
behalf, her parents sued the Defendant’s owners and operators for damages,
alleging that the employee’s negligence had proximately cause Jade’s injury.
At the same time period, Vancouver police were looking into
the circumstances leading to the Plaintiff’s injury, but did not filed charges.
In November 2004, the employee moved to prevent the release of the information
from the transcripts of her deposition to the Attorney General of British
Columbia (AG) or to the police; she invoked the Implied Undertaking Rule (IUR).
The AG opposed the employee’s motions and cross‑moved for an
order varying the IUR to allow the release of the transcripts to the police,
or, alternatively, for an order permitting the police to apply for the
transcripts by way of search warrant or subpoena. The employee’s deposition
took over four days. and the transcripts had stayed in the possession of the
civil parties and their counsel. In 2006, the parties settled the civil claim;
as a result, no one ever entered the employee’s deposition into evidence at a
trial, nor has anyone ever revealed its contents in open court.
The chambers judge rejected the argument that the IUR did
not apply at all to evidence of crimes, since “evidence of crimes” could range
from statements giving rise to mere suspicion to downright admissions of guilt.
The chambers judge held that it was more desirable to leave the discretionary
power of relief to the courts, rather than to the parties. The B. C. Court of
Appeal allowed the AG’s appeal. It held that the IUR could not “form a shield
from the detection and prosecution of crimes in which the public has an
overriding interest.” The court also held that discovery material remained
subject to search or seizure. The employee appealed to the Supreme Court of
Canada which allows that appeal.
The opinion then explores these interesting issues. “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.”
“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.”
“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
[deponent], 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 (1975), [1976] 1 S. C. R. 254 (S.
C. C.). 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.”
“There is a second rationale supporting the existence of an
[IUR]. 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. [Cite].”
“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).”
“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
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
(3rd Cir. 1986).”
“Breach of the [IUR] 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 ¶ 64, and Goodman v. Rossi
(1995), 125 D.L.R. (4th) 613 (Ont. C.A.), at p. 624.”
“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, In such an application the judge would have access to the documents or
transcripts at issue.” [¶¶ 24‑30].
“An application to modify or relieve against an [IUR]
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.”
“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 (S.C.C.). ...”
“Of course any perceived prejudice to the examinee is a
factor that will always weigh heavily in the balance. It may be argued that
disclosure to the police of the evil secrets of the psychopath at issue in
Smith v. Jones may have been prejudicial to him but was not an ‘injustice’ in
the overall scheme of things, but such a gloss would have given cold comfort to
an accused who made his disclosures in the expectation of confidentiality. If public
safety trumps solicitor‑client privilege despite a measure of injustice to the
(unsympathetic) accused in Smith v. Jones, it can hardly be disputed in this
jurisdiction that the [IUR] would yield to such a higher public interest as
well.” [¶ 32]
“As stated, the onus in each case will be on the applicant
to demonstrate a superior public interest in disclosure, and the court will be
mindful that an undertaking should only be set aside in exceptional
circumstances. In what follows, I do not mean to suggest that the categories of
superior public interest are fixed. My purpose is illustrative rather than
exhaustive. However, to repeat, an undertaking designed in part to encourage
open and generous discovery by assuring parties being discovered of confidentiality
will not achieve its objective if the confidentiality is seen by reluctant
litigants to be too readily set aside.” [¶ 38]
“Another situation where the deponent’s privacy interest
will yield to a higher public interest is where the deponent has given
contradictory testimony about the same matters in successive or different
proceedings. If the contradiction is discovered, the [IUR] would afford no
shield to its use for purposes of impeachment. In provinces where the [IUR] has
been codified, there is a specific provision that the undertaking ‘does not
prohibit the use of evidence obtained in one proceeding, or information
obtained from such evidence, to impeach the testimony of a witness in another
proceeding.’[Cites].”
“While statutory, this provision, in my view, also reflects
the general common law in Canada. An undertaking implied by the court (or
imposed by the legislature) to make civil litigation more effective should not
permit a witness to play games with the administration of justice. [Cite]. Any
other outcome would allow a person accused of an offence ‘[w]ith impunity [to]
tailor his evidence to suit his needs in each particular proceeding’ R. v.
Nedelcu (2007), 41 C.P.C. (6th) 357 (Ont. S.C.J.), at ¶¶ 49‑51).” [¶ 41]
“The chambers judge took the view that ‘leaving the
discretionary power of exemption or variation with the courts is preferable to
giving litigants the power to report to the police, without a court order,
anything that might relate to a criminal offence’ (¶ 27). I agree. On such an
application, the court will be able to weigh against the examinee’s privacy
interest the seriousness of the offence alleged, the ‘evidence’ or admissions
said to be revealed in the discovery process, the use to which the applicant or
police may put this material, whether there is evidence of malice or spite on
the part of the applicant, and such other factors as appear to the court to be
relevant to the exercise of its discretion. This will include recognition of
the potential adverse effects if the protection of the implied undertaking is
seen to be diluted or diminished.” [¶ 44]
“As mentioned earlier, the lawsuit against the appellant and
others was settled in 2006. As a result, the appellant was not required to give
evidence at a civil trial; nor were her examination for discovery transcripts
ever read into evidence. The transcripts remain in the hands of the parties and
their lawyer. Nevertheless, the [IUR] continues. The fact that the settlement
has rendered the discovery moot does not mean the appellant’s privacy interest
is also moot. The undertaking continues to bind. When an adverse party
incorporates the answers or documents obtained on discovery as part of the
court record at trial the undertaking is spent, but not otherwise, except by consent
or court order. ...” [¶ 51].
“I would not preclude an application to vary an undertaking
by a non‑party on the basis of standing, although I agree with Livent Inc. v.
Drabinsky that success on such an application would be unusual. What has
already been said provides some illustrations of potential third party
applicants. In this case the [AG] supported by the Vancouver Police,
demonstrated a sufficient interest in the appellant’s transcripts to be given
standing to apply. Their objective was to obtain evidence that would help
explain the events under investigation, and possibly to incriminate the
appellant. I think 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 him by the criminal law.”
“Accordingly, in my view, the present application was
rightly dismissed by the chambers judge. On the other hand, a non‑party engaged
in other litigation with an examinee, who learns of potentially contradicting
testimony by the examinee in a discovery to which that other person is not a
party, would have standing to seek to obtain a modification of the [IUR] and
for the reasons given above may well succeed. Of course if the undertaking is
respected by the parties to it, then non‑parties will be unlikely to possess
enough information to make an application for a variance in the first place
that is other than a fishing expedition. But the possibility of third party
applications exists, and where duly made, the competing interests will have to
be weighed, keeping in mind that an undertaking too readily set aside sends the
message that such undertakings are unsafe to be relied upon, and will therefore
not achieve their broader purpose.”
“While I would not deny the [AG] standing to seek to vary an
implied undertaking to which he is not a party, I agree with the chambers judge
that his application should be rejected on the facts of this case. The purpose
of the application was to sidestep the appellant’s silence in the face of
police investigation of her conduct. The authorities should not be able to
obtain indirectly a transcript which they are unable to obtain directly through
a search warrant in the ordinary way because they lack the grounds to justify
it.” [¶ 53]
“I would allow the appeal with costs to the appellant both
here and in the courts below.” [The other Justices concur]. [¶ 59].
Citation: Doucette (by guardian ad litem) v. Wee
Watch Day Care Systems Inc., 2008 CarswellBC 411; [2008] 1 S.C.R. 157 (Can.Sup.
Ct. 2008).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
