The Deemed Undertaking Rule In Ontario Litigation

In television dramas, lawsuits often appear to move at an unrealistic pace, with a claim filed one day and the parties appearing in court the next. In reality, litigation is a highly structured and often lengthy process, involving multiple procedural steps before a matter ever reaches trial.

One of the most significant steps that occurs prior to trial is the discovery process. Discovery allows counsel to uncover relevant information and narrow the issues in dispute. In order to promote a fair and equitable litigation process, discovery is governed by the Rules of Civil Procedure (the “Rules”). One of the key protections outlined in the Rules is the deemed undertaking rule.

What is The Deemed Undertaking Rule?

The deemed undertaking rule is codified in Rule 30.1.01 of the Rules. It provides that parties and their lawyers agree that the information and evidence (including documentary discovery, examination for discovery, inspection of property, medical examination, examination for discovery by written questions) obtained through the discovery process will only be used for the purpose it was collected and nothing further.

Rule 30.1.01(3) specifically states:

All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.

In Juman v Doucette, the Supreme Court of Canada interpreted the deemed undertaking rule and explained that it exists to protect privacy interests, including innocuous personal information that is neither confidential nor discloses any wrongdoing, while it also protects against self-incrimination and the efficient and fair conduct of civil litigation.

Statutory Exceptions Under Rule 30.1.01

While the Rule is strict, it is not absolute. Rule 30.1.01(6) sets out express exceptions.

Subrule (3) does not prohibit:

• a use to which the person who disclosed the evidence consents;
• the use for any purpose of,
• 1. evidence that is filed with the court;
  2. evidence that is given or referred to during a hearing;
  3. information obtained from evidence referred to in clause (a) or (b);
• the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding;
• the use of evidence or information in accordance with subrule 31.11 (8) (subsequent action); and
• if satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just.

Can Discovery Evidence Revealing a Crime Be Disclosed to Police?

Given the deemed undertaking rule, many people wonder whether information collected during the discovery process that reveals a crime was committed can be disclosed to police. Interestingly, the short answer is, no, not without a court order, except in truly exceptional circumstances. The Supreme Court of Canada in Juman affirmed that parties require a court order to disclose discovery evidence suggesting criminal conduct to police or other parties. Simply because a person being examined implicates self-incrimination, it does not amount to unnecessary disclosure.

Importantly, though, in situations of immediate and serious danger, the applicant may be justified in going directly to the police without a court order. The onus will be on the person applying for the exemption to demonstrate on a balance of probabilities that the existence of public interest and protection outweighs the values that the deemed undertaking is designed to protect.

Does the Deemed Undertaking Apply to Rule 30.10 (Non-Party) Documents?

The production of documents from non-parties with leave is codified as Rule 30.10 in the Rules and states:

30.10 (1)

The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged, where the court is satisfied that,

1. the document is relevant to a material issue in the action; and
2. it would be unfair to require the moving party to proceed to trial without having discovery of the document.

It is important to note that Rule 30.1.01 (1) specifically identifies Rule 30 as one of the provisions that triggers the deemed undertaking rule. As a result, information obtained through a Rule 30.10 motion is likely captured by Rule 30.1.01 (1).

Rule 30.10 authorizes the court to order document production from a non-party where relevance and fairness are established. Importantly, this form of production is court-ordered and therefore compulsory, not voluntary. Accordingly, documents produced to a Rule 30.10 order should be treated subject to the deemed undertaking rule and the associated exemptions.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by articling student Adriana Piccolo.