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

Written by admin on . Posted in Civil Procedure, Uncategorized.


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”.

BC Personal Injury Claims and Circumstantial Evidence

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized.

If you are injured in BC through the actions of another but can’t gather any direct evidence proving that the other party is at fault can you still succeed in a claim for damages?  The answer is yes a lies in circumstantial evidence.
Direct evidence is evidence that stands on its own to prove a fact :”I saw the Defendant get drunk, get behind the wheel speeding like a maniac and hit the pedestrian“.  Circumstantial evidence, on the other hand, is evidence that proves a fact by an inference “the defendant had 12 drinks on his bar tab and at the scene of the accident he was found unconscious in the driver seat, smelling of alcohol, in front of the pedestrian who was found injured in the crosswalk“.  In the first example there is direct evidence of drunk driving causing injury, in the second example there is evidence that can lead to the reasonable conclusion of drunk driving causing injury.
Negligence in BC Personal Injury cases can be found wholly on circumstantial evidence and today reasons were released by the BC Court of Appeal dealing with the law of circumstantial evidence in an ICBC claim.
In today’s case, Michel v. Doe and ICBC, the Plaintiff was “seriously injured by an object that had come off a loaded logging truck being driven by an unidentified driver.”   The Plaintiff sued for damages.   Since the driver left the scene of the injury and could not be identified the Plaintiff could not prove what specifically, if anything, the driver did wrong in contributing to this object coming off the logging truck.  The lawsuit was dismissed at the trial level due to a lack of evidence of negligence.  The Plaintiff appealed.
The BC Court of Appeal dismissed the appeal but in doing so discussed the law dealing with circumstantial evidence in BC personal injury claims.  The highlights of this discussion are reproduced below:

[21]          In Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318, this Court observed that Fontaine had not modified the underlying principles governing the use of circumstantial evidence with respect to liability in negligence, and emphasized that the burden of proof remained on the plaintiff:

[9]        The Supreme Court of Canada has recently said that the Latin maxim res ipsa loquitur should be abandoned as confusing and unhelpful in cases involving circumstantial evidence of negligence:  Fontaine v. Insurance Corporation of British Columbia (1997), 156 D.L.R. (4th) 577.  That case was decided after the judgment at trial in the case at bar.

[10]      While the Supreme Court was critical of the Latin maxim, the underlying principles governing the use of circumstantial evidence in determining liability for negligence were not modified.  The issue becomes simply whether, after weighing the whole of the direct and circumstantial evidence, the plaintiff has established a prima facie case of negligence against the defendant, and that inference has not been negated by the defendant’s evidence.  The legal burden of proof, of course, remains on the plaintiff throughout.

[22]          The appellant argues that the “question which must be asked and which the learned trial judge did not ask is whether, in the particular circumstances established by the evidence, the accident would ordinarily occur without negligence.”  However, this question was posed in Fontaine in the context of the Court’s discussion regarding the requirements for the application of res ipsa loquitur during the course of its “obituary” for the Latin maxim (Gillis v. B.C. Transit, 2001 BCCA 248 at para. 4, 88 B.C.L.R. (3d) 163).  Nonetheless, it is arguable that despite the reformulation given in Fontaine, this question remains relevant to the issue of whether a prima facie case of negligence has been made out.  In Fontaine itself, in concluding that the circumstantial evidence present did not discharge the plaintiff’s onus, the Court stated “it should not be concluded that the accident would ordinarily not have occurred in the absence of negligence” (paras. 31-32).  Moreover, as previously noted, Marchuk held that despite its criticism of res ipsa loquitur, the Court in Fontaine had not actually modified the underlying principles governing the use of circumstantial evidence in determining liability for negligence.  Further, in Lemaire v. Ashabi et al, this Court upheld the trial judge’s decision finding negligence, a decision which referenced Fontaine, stating with respect to the trial judge’s finding of prima facie negligence that:

[7]        She first considered whether the prima facie inference of negligence could be drawn.  She cited (at para. 56) United Motors Service Inc. v. Hutson et al, [1937] S.C.R. 294, for the principle that:

… the fact that an operation is under the control of the defendant coupled with the fact that the accident is such that in the ordinary course of things it would not happen if those having the management use proper care, is sufficient to establish a prima facie case of negligence.

[23]          In this case, the trial judge held that he was unable to infer from the evidence that a breach of the standard of care had occurred.  In my view, the appellant’s argument that the standard was breached “because it is obvious that a rock that might foreseeably dislodge and pose a hazard did in fact get dislodged and injured [the appellant]” is a misinterpretation of the trial judge’s formulation of the standard of care.  Instead, the judge concluded that the fact that the rock came off the logging truck was not, by itself, sufficient to establish that the standard of care, as he had stated it, was breached.

[24]          The trial judge held that log haulers owed a duty of care to people such as the appellant, the standard of which was “that they must diligently perform a complete inspection of their vehicle and their load to identify and remove debris or any foreign matter that might foreseeably dislodge and pose a hazard to the person or property of any member of the public who might foreseeably be harmed by such debris falling from the vehicle or load.”  Having defined the standard of care in terms of a prudent inspection, the trial judge considered the evidence of how the rock had come off the truck to determine whether the rock ought to have been discovered by such an inspection.  He concluded that he was unable to determine where the rock had probably been located in the load, and accordingly, was unable to find that it probably would have been discovered by a proper inspection.  In other words, the possibilities of non-negligence (a prudent and diligent inspection in which the rock nevertheless eluded detection) and of negligence (no inspection or a negligent one) were equally consistent with the available evidence.

[25]          In my view, this case is analogous to the application of Fontaine in Hall v. Cooper Industries, Inc., 2005 BCCA 290 at para. 59, 40 B.C.L.R. (4th) 257: “[the appellant] did not establish aprima facie case of negligence which caused the accident.  Therefore the case never reached the point where [the respondent] was required to produce ‘evidence to the contrary.’”

[26]          The trial judge’s conclusion that the evidence was equally consistent with the possibility that the rock was “somewhere in the middle of the load but near the front, where it could have eluded detection without negligence” as with the possibility that it was somewhere it ought to have been discovered, is consistent with the trial judge having considered the question of whether the accident would ordinarily occur without negligence.  His conclusion was that the accident was equally as likely to have occurred without negligence as with it.