WHAT HAPPENS TO YOUR CONFIDENTIAL INFORMATION ONCE IT IS PROVIDED TO DEFENDANTS IN A LAWSUIT? – THE DEEMED UNDERTAKING RULE
When you are in a lawsuit you must provide complete medical records and information as well as your employment file should you advance a claim for past or future loss of income. The information contained in these records can be highly sensitive and sometimes embarrassing. Records filed with the Canada Revenue Agency for tax purposes are also highly confidential.
Fortunately, Plaintiffs as well as other litigants are protected by means of a deemed undertaking of confidentiality which has been codified in Ontario as well as other jurisdictions. This undertaking is limited.
Obviously it is in the public’s interest to promote access to justice. Access to justice in a lawsuit necessarily requires both sides to disclose everything that is relevant to the claims they are advancing. The Courts have restricted all parties from using documents or disclosures for ulterior motives. If this Rule did not exist, openness and fairness in the Court system would be at risk.
In Ontario, Rule 30.1.01(3) of the Ontario Rules of Civil Procedure provides:
all parties and their lawyers are deemed to undertake not to use evidence or information to which this rule applies for any purpose other than those of the proceeding in which the evidence was obtained”.
The Rule specifically outlines that this protection of the use of information applies to all documents obtained in the Document Discovery Process (Rule 30), the Examination for Discovery or Questioning Under Oath (Rule 31), Inspection of Property (Rule 32), Defence Medical Examinations (Rule 33) and Examination by Written Questions (Rule 35).
There are exceptions in the rule, the most notable of which is that the Rule does not prohibit the use of evidence obtained in one proceeding to impeach the testimony of the witness in another proceeding. The Court also has the authority to rule that the deemed undertaking rule does not apply if:
“The interest of justice outweighs any prejudice that would result to a party who disclosed evidence”.
Nicholson Gluckstein Lawyers