ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘privacy’

Privacy A Rare Protection For Personal Injury Plaintiffs

November 18th, 2014

When a personal injury claim proceeds to trial oftentimes publicly available reasons for judgement are published which are accessible by all.  These frequently reveal details about a Plaintiff’s health, limitations, injuries and other personal details.  Reasons for judgement were released discussing if a Plaintiff should be granted anonymity in published reasons for judgement.  In short, the Court held that absent exceptional circumstances, such privacy protections should not be granted.

In the recent case (Davidge v. Fairholm) the Plaintiff, who was injured in a collision, asked for anonymity on the basis that “ publishing the plaintiff’s name might hurt him in his employment, as his employer might treat him differently after learning about his medical issues.  This is because the plaintiff works in employment that involves some physical stress on his body”.  ICBC objected to the reqest for privacy.  In denying the Plaintiff’s request Madam Justice Griffin provided the following reasons:

[12]         The law is clear that anonymizing a judgment by substituting initials for a litigant’s name should only occur in rare circumstances, such as where it is necessary to protect a vulnerable litigant or a vulnerable person who can be identified through the litigant.

[13]         I find that there is nothing exceptional about this case which requires a publication ban on the name of the plaintiff.  There is no more of an invasion of privacy in this case than in an ordinary case and the plaintiff is not a vulnerable person.

[14]         I also note that if publication bans were a matter of course in personal injury trials this could negatively impact the administration of justice.  There are sound reasons for publishing the names of litigants.  One benefit of the open court principle is that it brings home to a person who testifies the importance of telling the truth and increases the potential consequences of failing to do so.  This is one reason the Third Party’s opposition to such an application is an important factor to weigh.

[15]         The application to anonymize the judgment is therefore refused.


“The special place of confidentiality in the physician-patient relationship” Discussed by BC Court of Appeal

May 28th, 2013

In reasons for judgement released this week the BC Court of Appeal discussed physician patient confidentiality and the limited basis for disrupting this.

In this week’s case (Logan v. Hong) the Plaintiff was advancing a class action for damages on behalf of  “all persons who were injected with Dermalive in Canada and who thereafter developed granulomas in the area injected with Dermalive.”   The Plaintiff proposed to notify the class members by direct mail.   Mr. Justice Sewell agreed this was appropriate and ordered various physicians to provide the information concerning these patients to counsel for the plaintiff.

The Court of Appeal overturned this order finding it would unduly interfere with doctor/patient confidentiality.  In doing so the BC Court of Appeal provided the following reasons:

[11]         Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses, and contact information of persons who received this treatment. Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest. In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship…

[13]         The special place of confidentiality in the physician-patient relationship is of long standing. In Halls v. Mitchell, [1928] S.C.R. 125, the Supreme Court of Canada commented upon the duty of secrecy owed to a patient, affirming that the patient’s right of confidentiality is superseded only by issues of paramount importance. Mr. Justice Duff, for the majority, described this principle at 136:

We are not required, for the purposes of this appeal, to attempt to state with any sort of precision the limits of the obligation of secrecy which rests upon the medical practitioner in relation to professional secrets acquired by him in the course of his practice. Nobody would dispute that a secret so acquired is the secret of the patient, and, normally, is under his control, and not under that of the doctor. Prima facie, the patient has the right to require that the secret shall not be divulged; and that right is absolute, unless there is some paramount reason which overrides it. Such reasons may arise, no doubt, from the existence of facts which bring into play overpowering considerations connected with public justice; and there may be cases in which reasons connected with the safety of individuals or of the public, physical or moral, would be sufficiently cogent to supersede or qualify the obligations prima facie imposed by the confidential relation.

                                                                                    [Emphasis added.]

[14]         And, at 138:

It is, perhaps, not easy to exaggerate the value attached by the community as a whole to the existence of a competently trained and honourable medical profession; and it is just as important that patients, in consulting a physician, shall feel that they may impart the facts touching their bodily health, without fear that their confidence may be abused to their disadvantage. …

                                                                                    [Emphasis added.]

[15]         More recently, the Supreme Court of Canada, referring to Halls, restated the significance of confidentiality to the physician-patient relationship in McInerney v. MacDonald, [1992] 2 S.C.R. 138, 93 D.L.R. (4th) 415, discussing at 148 a patient’s right to access to medical records:

When a patient approaches a physician for health care, he or she discloses sensitive information concerning personal aspects of his or her life. The patient may also bring into the relationship information relating to work done by other medical professionals. The policy statement of the Canadian Medical Association cited earlier indicates that a physician cannot obtain access to this information without the patient’s consent or a court order. Thus, at least in part, medical records contain information about the patient revealed by the patient, and information that is acquired and recorded on behalf of the patient. Of primary significance is the fact that the records consist of information that is highly private and personal to the individual. It is information that goes to the personal integrity and autonomy of the patient. As counsel for the respondent put it in oral argument: “[The respondent] wanted access to information on her body, the body of Mrs. MacDonald.” In R. v. Dyment, [1988] 2 S.C.R. 417, at p. 429, I noted that such information remains in a fundamental sense one’s own, for the individual to communicate or retain as he or she sees fit. Support for this view can be found in Halls v. Mitchell, [1928] S.C.R. 125, at p. 136. There Duff J. held that professional secrets acquired from a patient by a physician in the course of his or her practice are the patient’s secrets and, normally, are under the patient’s control. In sum, an individual may decide to make personal information available to others to obtain certain benefits such as medical advice and treatment. Nevertheless, as stated in the report of the Task Force on Privacy and Computers (1972), at p. 14, he or she has a “basic and continuing interest in what happens to this information, and in controlling access to it.”

                                                                                    [Emphasis added.]

[16]         Whether referred to as secrecy, personal autonomy, confidentiality, or privacy, the patient’s interest in protecting information of his or her medical treatment is reflected in the Code of Ethics of the Canadian Medical Association under the heading Fundamental Responsibilities:

Privacy and Confidentiality

31. Protect the personal heath information of your patients.

35. Disclose your patients’ personal health information to third parties only with their consent, or as provided for by law, such as when the maintenance of confidentiality would result in a significant risk of substantial harm to others or, in the case of incompetent patients, to the patients themselves. In such cases take all reasonable steps to inform the patients that the usual requirements for confidentiality will be breached…

[25]         I conclude that, giving full weight to the principle of privacy and confidentiality inherent in the physician-patient relationship, the limited circumstances that call for breaching the patients’ privacy are not present here.


ICBC Denied Access to Plaintiff's Vacation Photos

October 29th, 2012

Reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing an ICBC application to compel production of a Plaintiff’s vacation photos.

In the recent case (Dawn-Prince v. Elston) the Plaintiff was injured in a 2007 collision.  In the course of her lawsuit she was examined for discovery where she “testified that she had been on these vacations…(and) about her activities on the vacations“.

ICBC brought an application to have access to any photos taken of these holidays.  The Court dismissed this application finding that while canvassing the scope of a Plaintiff’s vacation activities is fair game at discovery production of photos is not required.  In dismissing the application Master McCallum provided the following reasons:

[3]  In the authorities to which I was referred, the court has on some occasions ordered production of photographs in similar circumstances where on vacation…

[4]  The difference in this case is that the plaintiff acknowledges that she engaged in the sporting and physical recreational activities, including the very ones that are referred to in the Fric decision; hiking, scuba diving, and so on.  The photographs that are requested have been reviewed by counsel or someone in cosunsel’s office, Marler, who swears in her affidavit that she reviewed 23 photographs in which the plaintiff was shown and says that they do not depict the plaintiff in strenuous physical activities; rather they depict her standing, sitting, or walking, by the pool, or on the beach…I am satisfied from that evidence that production of this evidence, which is clearly the second stage of documentary discovery contemplated by the Rules, is not appropriate.  These photographs, from the evidence on this application, will not assist the defendant in defending the claim.  The evidence of the plaintiff, of course, with respect tow hat she did on her vacations nay well assist, but the photographs neither contradict nor confirm that.  They show the plaintiff on the evidence in activities that are not inconsistent with anything other than standing, sitting, or walking, none of which she says she cannot do,..

[6]  The application for production of photographs…is dismissed.


Welcome Lawyers Weekly Readers

May 30th, 2012

For those of you visiting this site for the first time after reading my recent interview with The Lawyers Weekly, welcome!  For more on the topic of client’s ‘spying on themselves‘ you can click here, here, here and here to access some of my previous posts.


More On Video Surveillance and Chronic Pain

August 31st, 2011

A regular reader of this blog shared some views with me recently and I thought these were worth repeating.  These relate to chronic pain complaints and the value, if any, of video surveillance.   Specifically the reader shared the following thoughtful observation:

This Fall we will again be watching hockey on tv [ video evidence ] Can you tell me which player[s] are playing hurt ? And trust me …. they are …. some very much. We often know this at the end of the year …. as teams ” hide ” or deny that certain players are hurt … in that the opposing players do not focus on and target their injuries. Video tapes ? I don’t trust them

What do you say?  Is there value to video surveillance?   Does it effectively weed out fraudulent claims or is it an unnecessary invasion of privacy?

As always I welcome others views, feel free to leave a comment.  You can click here to read a 2008 article sharing some of my views of video surveillance.


Digital Vacation Photos and Metadata Production Ordered in ICBC Claim

July 5th, 2011

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, ordering production of a Plaintiff’s vacation photos in an ICBC injury lawsuit.

In today’s claim (Abougoush v. Sauve) the Plaintiff was injured in a 2007 motor vehicle collision.  She alleged that her injuries disabled her for a period following this collision.  During this period she travelled to Las Vegas, Palm Springs and the Caribbean.   Photos were taken during these trips.

ICBC asked for the photos to be produced.  The Plaintiff opposed arguing that any probative value in the photos was outweighed by Privacy concerns.  Mr. Justice Rogers reviewed the photos and ultimately ordered them disclosed.  The Court noted some difficulty reconciling the activities depicted in the photos with the “Plaintiff’s perception of what is a physical activity” based on her affidavit evidence.  In ordering production of the digital photos and metadata Mr. Justice Rogers provided the following reasons:

[7] The photographs in question depict the plaintiff in various indoor and outdoor tropical settings. The plaintiff is depicted engaging in various activities including swimming, walking on a beach, going on a catamaran power boat, and visiting the Grand Canyon. The photographs clearly establish that the plaintiff did not spend the majority of her time curled up in her parent’s motorhome or resting poolside in a chaise lounge.

[8] I have referred to the pleadings, of course, in order to determine what matters are in question, but I have also referred to the plaintiff’s Affidavit #1, particularly the extracts set out above. The pleadings establish that the nature and extent of the plaintiff’s physical injuries, their effect on her enjoyment of life and their effect on her ability to participate in physical activity are matters in question. The photographs, when they are compared to the plaintiff’s affidavit evidence, are clearly relevant to the plaintiff’s perception of what is a physical activity. They are also relevant to the plaintiff’s tolerance for physical activity over a several week period.

[9] The photographs do not show the plaintiff in embarrassing or socially unacceptable situations. There is nothing about the photographs that would prevent their owner from, for example, posting them on a social networking site such as Facebook. I do not consider that the plaintiff’s demeanour or comportment in any of the photographs in the binder is such that they must be withheld from the defendants in order to preserve her privacy.

[10] In my opinion, the plaintiff’s pleadings and her affidavit evidence make the entire photographic record of her trips to Las Vegas and Palm Springs, and to the Caribbean, relevant to matters in question in this suit. All of the photographs in the binder provided to me must, therefore, be produced to the defendants.

[11] From what I can see of the camera that the plaintiff used to take many of these photographs (the camera can be seen in the reflection off the plaintiff’s sunglasses in some of her self-portraits), I believe it was a digital device. Digital cameras typically record the time and date when the photograph was taken. Some cameras capture the camera’s GPS co-ordinates as well. These data are known as metadata. These data are relevant to a matter in issue in this lawsuit because they may provide information from which the camera user’s tolerance for physical activity from day to day or over several days may be inferred. More particularly, the metadata may be relevant to the plaintiff’s ability to, for example, be active throughout a given day and then go walking on the beach in the evening, or it may be relevant to the plaintiff’s ability to spend an evening at a nightclub until some given hour, and then tolerate swimming the next morning. For that reason, the metadata associated with these photographs must also be produced to the defendants. That discovery may be accomplished by providing the defendants with digital copies of the photographs with the metadata preserved intact in those copies.


Lawyer Ordered to Download His Own Client's Facebook Account Data In Injury Lawsuit

February 19th, 2011

Controversial reasons for judgement were recently released by the The Court of Queen’s Bench of New Brunswick.  The Court required a Plaintiff in a personal injury lawsuit to preserve all contents on her Facebook homepage and have these produced.  While requiring Social Medial Data production is not necessarily unique, the way the Court required this evidence to be preserved will cause concern for many.

In the recent case (Sparks v. Dube) the Plaintiff was injured in a motor vehicle collision in Fredericton in 2008.  She hired a lawyer and sued for damages.  In the course of the lawsuit the defence lawyer brought a motion, without notifying the plaintiff’s lawyer, requesting personal information from the Plaintiff’s Facebook account.  The Court granted the motion and made the following contraversial orders:

1)  A Preservation Order and, in the alternative, an Interlocutory Injunction are hereby made and issued compelling Erica Sparks: 1) to preserve and maintain without deletions or alterations the entire contents of her personal Webpage(s) on the social network Facebook including but not limited to photographs, text, links, postings, event details and video clips until further direction of the court, and 2) to participate in the carrying out of the following orders where her participation is required;

2)  The Interlocutory Injunction shall expire ten days after these orders take effect instituted;

3)  The Applicant-Defendant shall personally and immediately serve all orders and a copy of this judgment upon the Plaintiff’s solicitor, Mr. James Crocco who shall not disclose any of the orders set out herein nor the contents of this judgment except on terms as they are allowed by these orders;

4)  Upon being served, Mr. James Crocco shall arrange for a solicitor in his firm or an agent lawyer of his choice to be appointed to carry out as soon as reasonably possible, and in the case of the Interlocutory Injunction within ten days of the taking effect of these orders, the orders set out that pertain to his client Erica Sparks subject to the following terms:

a)  The appointed solicitor shall be remunerated by the Defendant for his or her services;

b)  That solicitor shall immediately contact Ms. Sparks and, without disclosing the nature of the subject matter to be discussed, schedule a meeting with her at a location convenient to access and download data from the Internet and reduce it to usable form, such as hard copy for data so suited or memory stick or other such device for videos, as soon as reasonably practicable;

c)  Upon personally meeting with Erica Sparks at the location chosen the appointed solicitor shall apprise her of the terms and conditions of the Preservation Order and Interlocutory Injunction as well as the other orders contained herein that pertain to her;

d)  Immediately upon disclosure of the terms and conditions of the orders set out, Erica Sparks, in the presence of the solicitor engaged, shall create a permanent tangible records in hard copy, wherever possible, or to other suitable device, of the entire contents of her Webpage(s) on Facebook including, but not limited to, all photographs, text and links and shall record by a memory stick or other suitable device any videos posted or linked to Erica’s Sparks’ Webpage, one copy of which shall be sealed upon the carrying out of that part of these orders and delivered to Mr. James Crocco to be held and preserved by him until further direction of the court; but the delivering of a sealed copy of the entirety of her Webpage(s) shall not operate to preclude Erica Sparks from providing her counsel, Mr. James Crocco, or anyone else of her choosing with a copy of the entirety of her Webpage(s) in order to prepare for the Production Hearing or further proceedings;

5)  Upon complying with the said orders the solicitor appointed to supervise the downloading of the material referred to herein shall immediately review all of the material downloaded to ensure that the orders have been carried out in full and shall then certify to the court in writing that there has been strict compliance with the orders contained herein, and that the sealed packet represents the entire contents of the Facebook Webpage(s) of Erica Sparks as well as videos posted or linked to it or them;

6)  Upon the successful execution of the orders set out herein and the execution of the certification of strict compliance with the orders contained herein by the solicitor appointed to supervise the downloading of the material referred to herein  Erica Sparks shall be free to resume unrestricted access to her Webpage(s) on Facebook including its substantive composition;

7)  The Motion begun on December 9, 2011 shall be adjourned to a date to be fixed by the Clerk of the Court of Queen’s Bench for the Judicial District of Woodstock;

8)  The Defendant shall then file with this court and serve on the Plaintiff, in timely fashion, a Notice of Motion for the production and disclosure of the contents of the sealed packet of information/data;

9)  Once a date for a Production Hearing has been set Mr. James Crocco shall bring to that hearing the sealed packet of data retrieved from the Facebook Webpage(s) of Erica Sparks pursuant to the orders contained herein;

10)                     Upon completion of the execution of the orders contained herein, that apply to the retrieval of the entire contents of Erica Spark’s Facebook Webpage(s) on the terms as set out in these orders, the temporary oral sealing order sealing the entire file and court record in this matter that was imposed on December 9, 2010 at the conclusion of the ex partehearing shall be lifted without further order of the court.

11)                     The Plaintiff shall upon execution of these orders and the holding of a Production Hearing, in timely fashion, file a further and better Affidavit of Documents;

I understand that this order is being appealed and look forward to the New Brunswick Court of Appeal’s views on this matter.  While there are cases requiring Plaintiffs to produce social media data in personal injury lawsuits in BC, I am not aware of any cases in this Province going as far as the above decision.  Arguably the New BC Rules of Court focus on proportionality, narrower document disclosure obligations, and general prohibition of “fishing expeditions” in discovery of documents would prevent such an order from being granted in BC.


We Don't Need Your Consent! – ICBC Claims and Medical Reports

December 1st, 2010

If you’re involved in a BC motor vehicle collision and have your injuries treated by a “medical practitioner” ICBC can compel the medical practitioner to provide them with a report documenting your injuries.  This is so even if you are not insured with ICBC and even if you don’t consent.  Reasons for judgement were published this week on the BC Supreme Court’s website discussing this area of law.

In today’s case (Pearlman v. ICBC) the Plaintiff was involved in collision in 2004.  He was insured with a carrier from Washington State.  The other motorist was insured with ICBC.   The Plaintiff initially contacted ICBC and signed an authorization permitting ICBC to obtain medical information relating to his injuries.  About a year later the Plaintiff hired a lawyer and cancelled the authorization.  Despite this ICBC contacted a physician who treated the Plaintiff after the accident (Dr. Lubin) and requested “a narrative medical report“.

Ultimately the Plaintiff’s lawsuit against the other motorist was dismissed at trial.  The Plaintiff then sued Dr. Lubin arguing that the physician breached the Plaintiff’s confidence by providing ICBC a medical report when the Plaintiff withdrew his consent for ICBC to obtain his medical information.  The Plaintiff also sued ICBC directly arguing that ICBC improperly requested the medico-legal report.  Both of these lawsuits were dismissed with the BC Supreme Court finding that whether or not ICBC has written authority, section 28 of the Insurance (Vehicle) Act permits ICBC to obtain reports from treating medical practitioners and that practitioners have “no legal choice” other than to comply with such requests.

In the claim against Dr. Lubin Madam Justice Morrison stated as follows about the mandatory nature of section 28 of the Insurance (Vehicle) Act:

[] Dr. Lubin was obligated to provide ICBC with the report as requested.  Dr. Lubin had no legal choice other than to comply with the mandatory request to submit a medical legal report to ICBC.  This did not amount to a breach of confidentiality as alleged by the plaintiff.

In the claim against ICBC Mr. Justice Smith found that it would be an ‘abuse of process‘ to permit the Jury in that action to make findings contrary to Madam Justice Morrison’s previous decision.  Mr. Justice Smith held as follows:

[14]         The plaintiff also sued Dr. Lubin, alleging a number of causes of action, including negligence and breach of confidence.  That action went to trial before Madam Justice Morrison and was dismissed in reasons for judgment dated March 11, 2009.  Madam Justice Morrison held that when ICBC requested the report, Dr. Lubin was obliged to provide it.  She found that obligation arose out of s. 28 of the Insurance (Vehicle) Act, which reads:

If any of the following persons attends to, diagnoses, treats or is consulted by a person injured in a motor vehicle accident in British Columbia, he or she must, whenever the corporation requests, provide the corporation, as soon as reasonably practicable, with a report of the injuries and their diagnosis and treatment and a prognosis, in the form the corporation prescribes …

The persons then listed include a medical practitioner….

[20] Madam Justice Morrison’s findings regarding Dr. Lubin’s conduct were made on the same or very similar evidence that is before the Court in this case, and I conclude it would indeed be an abuse of process to invite this jury to make contrary findings.

The Plaintiff appealed Madam Justice Morrison’s decision.  In the course of the Appeal the Plaintiff was ordered to post security for costs in the event he lost the appeal.  In reviewing this decision the BC Court of Appeal made the following comments on the matter of ICBC ordering reports not in the ‘prescribed form‘:

[19] Even if Mr. Pearlman were to succeed in his argument that the judge erred in finding that Dr. Lubin was required to provide the report under statute – I note, in that regard, that the report was not prepared in form CL 19, which is ICBC’s prescribed form under s. 28 of theInsurance (Vehicle) Act) – it is difficult to see how his appeal could succeed given the trial judge’s clear finding that Dr. Lubin did not cause him any loss.

These decisions illustrate ICBC’s power to get medical reports even absent patient consent.  It can be argued that the Court of Appeal’s comments can leave individuals with little recourse if ICBC goes further than ordering a CL-19 and in fact obtains a full medico-legal report.  A solution, at least insofar as tort claims are concerned, is for plaintiffs to bring this power to the Courts attention when ICBC insured defendants try to obtain independent medical exams in order to ‘level the playing field‘ under the BC Supreme Court Rules.


What You Need to Know About ICBC's Use of Twitter

June 8th, 2010

If you are making an ICBC Personal Injury Claim and if you use social media such as Twitter ICBC is probably watching you.

You may be asking yourself ‘how can ICBC find my tweets if they’re not one of my followers?‘.  The answer is simple, ICBC monitors the phrase ‘ICBC’ and each time these letters are used the tweet comes to their attention whether they are one of your followers or not.  Want proof?  Here’s a recent exchange demonstrating this use in action.

An individual made an ICBC claim and posted the following on Twitter:

ICBC quickly responded to this individual as follows:

ICBC was not a follower of this indvidual and he was surprised that ICBC saw his tweet as can be seen from the following reply:

From a customer service standpoint this is probably good stratgy by ICBC.  If a customer is unhappy respond and see if you can help.  I have nothing critical to say about this.  However, from an injury claims perspective, people need to know that their social media use is being monitored perhaps by people they don’t want watching them.

I don’t write this post to scare you from using social media or even to discourage you from discussing your ICBC claim on-line.  You need to be aware, however, that your audience can be bigger then you expect.


More on Privacy Rights, Compelled Disclosure and the Implied Undertaking of Confidentiality

May 11th, 2010

Further to my previous posts on this topic, when people sue (or are sued) in the BC Supreme Court the Rules force disclosure of certain facts and documents.  To balance the parties privacy interests the Courts have developed an “implied undertaking of confidentiality” which is basically a judge made rule that “requires a party to civil litigation to keep confidential all information disclosed by adverse parties in the litigation under the compulsion of discovery procedures.  The receiving party is only to use the disclosed information in the litigation in which it was produced

The implied undertaking can be lifted by an order of the Court or by consent of the party that disclosed the information.  Another way the implied undertaking can come to an end is if the case goes to “open court”.   The question is when is the open court exception triggered.  As most lawyers know most cases don’t go to trial but it is common to have pre-trial applications held in open court.  In such a case is the exception triggered?  Reasons for judgement were released today dealing with this novel issue.

In today’s case (Bodnar v. The Cash Store inc.) the Plaintiff’s were involved in a lawsuit.  During the course of that claim a pre-trial motion was brought which relied, in part, on documents produced by the Defendant by the compulsion of the forced disclosure under the Rules of Court.  The case ultimately settled and a different class of Plaintiff’s brought a “virtually identical” lawsuit.

The Plaintiff’s wished to use the materials obtained in the first lawsuit in the second claim.  The Defendant’s would not consent arguing that the implied undertaking of confidentiality prohibited this use.  The Court was asked whether having the documents used in a pre-trial chambers application triggered the open court exception.  Madam Justice Griffin provided the following useful analysis:

[45] I conclude that a proper balancing of the public interest involved in the implied undertaking rule and in the open court principle, in respect of information filed in court as part of an interim application, can best be achieved by applying the following principles:

(a) the implied undertaking does not end when information, produced by an adverse party under compulsion of discovery (the “Producing Party”), is filed in court by the receiving party (the “Receiving Party”) in support of an interim application;

(b) in considering a Receiving Party’s application for leave to be relieved from the implied undertaking, the court may consider, as one factor in support of leave, the fact that the information was filed in court for a legitimate purpose and became part of the court record; and

(c) the implied undertaking of a Receiving Party ends, with respect to information produced by the Producing Party, when that information is filed in court by the Producing Party itself.

[46] The above principles would seek to avoid the mischief of a party with ulterior motives filing the adverse party’s information in court simply to get around the implied undertaking.  Upholding the implied undertaking and placing the onus on the Receiving Party to seek the court’s leave before using the information for another purpose, would encourage parties to fulfill their discovery obligations knowing that the implied undertaking cannot easily be avoided.   At the same time, the fact that the documents are now part of the court record, available to all other persons, will be one important factor to be considered by the court on a Receiving Party’s subsequent application for leave to use the documents for other purposes.

[47] It makes sense however, that the implied undertaking is lost when the Producing Party files its own information in open court.  There can be no concern about abuse of process or a deliberate attempt to circumvent the implied undertaking rule in such a situation, given that the Producing Party is not under any undertaking with respect to its own information and was not compelled to produce it in court.

The Court went on to hold that, despite the implied undertaking not coming to an end by virtue of the documents use in court, it would be appropriate to permit the Plaintiff’s to use the information in the subsequent lawsuit.  This case is worth reviewing in full for anyone interested in the developing principles of privacy law in BC as the judgement contains a lengthy discussion of the principles at play and the relevant precedents addressing the “implied undertaking of confidentiality”.