Implied Undertaking of Confidentiality Set Aside For Health Care Costs Recovery Action
Further to my previous posts addressing the implied undertaking of confidentiality, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing whether the undertaking for documents produced in a tort action should be set aside for a subsequent prosecution under the Health Care Costs Recovery Act.
In this week’s case (British Columbia v. Tekavec) the Defendant was found liable for damages after an individual fell from a balcony in a building owned by him. He was ordered to pay over $322,000 in damages. The BC Government then sued the Defendant seeking recovery of their Health Care Costs.
In the course of the lawsuit the Government requested production of certain documents which were created in the initial litigation such as examination for discovery transcripts. The Defendant refused to provide these arguing they were subject to the implied undertaking of confidentiality. The Court held that in these circumstances it was appropriate to order production. In doing so Mr. Justice Williams provided the following reasons:
11] It is a fundamental rule of the litigation model that information, both documentary and oral, obtained by a party through the discovery process is subject to an implied undertaking. It cannot be used by any other party (i.e. other than the originator) except for the purpose of the litigation in which it was produced. The undertaking is essentially perpetual: it survives the resolution of the litigation in which the discovery was made. The restriction can be modified only by court order or with the consent of the party with whom the material originates.
 The principle is authoritatively articulated in Juman v. Doucette, 2008 SCC 8, and the underlying rationale is discussed there at some length. For the purpose of the present discussion, there is no point to delving into that.
 Where a court order is sought to relieve against the implied undertaking, the applicant will have the onus of satisfying the court on a balance of probabilities that the interest to be advanced through the sought-after disclosure is greater than the values that underpin the rationale for the implied undertaking. Central to the analysis will be a careful consideration of any prejudice that will be caused to the party who initially provided the material at issue. Of course, it goes without saying that the material must be relevant to the issues in the action in which the disclosure is sought…
29] In the matter at hand, it is my conclusion that the circumstances warrant an order overriding the protection of the implied undertaking. The basis for so deciding is that, while the applicant HMTQ was not a party to the original action, the principal issue in the present action is compellingly similar to the issue there: was Mr. Tekavec responsible for the injuries that were sustained by Mr. Jack? I note as well the following: Mr. Jack has apparently indicated that he has no objection to the materials being disclosed to the applicant. There would be no prejudice to Mr. Jack if the materials were to be disclosed. Finally, the same questions and topics that were canvassed with Mr. Tekavec in the examination for discovery at issue could be quite properly raised in his examination for discovery in the present action. In effect, disclosure of the materials represents a proper means of proceeding more efficiently.