Pretrial discovery generally intended to be used only for litigation in which it was obtained
In cases involving wrongful dismissal claims in court, it is not unusual for the employee (plaintiff) to concurrently commence a separate action before the jurisdiction’s human rights tribunal. An interesting issue that may arise in the course of these proceedings is whether evidence obtained from the court litigation process, through examination for discovery, can be used in the tribunal process.
An examination for discovery is a meeting where one party asks the other party questions about the dispute. The questions and answers (which are taken under oath) are transcribed and turned into a transcript. The transcript can be used in the court proceeding to help prove, or disprove, facts.
Can this transcript also be used in a tribunal complaint process? Before we examine this question, it is helpful to understand why one party – typically, the opposing party, may want to use the transcript in the tribunal process. Generally, the purpose is to impeach a witness. In other words, it is intended to help one party catch the other party in a lie.
There is no automatic right of a party to use a transcript from a court proceeding in a tribunal complaint process. The reason is that there is an implied undertaking given to the court under which evidence compelled during pretrial discovery from a party to civil litigation can be used by the parties only for the purpose of the litigation in which it was obtained.
However, the implied undertaking (or the “implied undertaking rule”) may be waived or varied. The leading case on the waiver or variation of the implied undertaking is Juman v. Doucette, 2008 SCC 8.
In Juman, an infant and her parents sued the owners and operators of a daycare, alleging the infant suffered a brain injury as a result of the owner’s misconduct. Ultimately, the civil action settled, and the childcare worker’s discovery was never entered into evidence at a trial nor were its contents disclosed in open court.
The police and the Attorney General of British Columbia (AGBC) brought an application seeking the release of the discovery transcripts and to allow the police to apply for the transcripts by way of search warrant, subpoena or other investigative means. The appellant (defendant) brought an application to prohibit the parties to the civil action from providing discovery transcript to the police and to prohibit the police and AGBC from obtaining and using copies of the transcripts without further court order.
The issue before the Supreme Court of Canada (SCC) was the scope of the implied undertaking rule. The SCC ruled that the pursuit of police investigation did not outweigh the appellant’s right to privacy and right against self-incrimination. Therefore, the AGBC was denied a variation of the implied undertaking.
The implied undertaking rule provides that “both documentary and oral information obtained on discovery … is not to be used by the other parties except for the purpose of that litigation,” unless a court varies the scope of the implied undertaking or a “situation of immediate and serious danger emerges.” The rule is of such importance that, even where an action has been settled, the policies underlying the implied undertaking rule remain undiminished. Breaches of the implied undertaking may be remedied by a variety of means, including, but not limited to, contempt proceedings.
The criteria for a modification or variance of the implied undertaking were explained in Jumon:
“An application to modify or relieve against an implied undertaking requires an applicant to demonstrate to the court on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation. In a case like the present, of course, there weighs heavily in the balance the right of a suspect to remain silent in the face of a police investigation, and the right not to be compelled to incriminate herself.
“The chambers judge took the view (I think correctly) that in this case that factor was decisive. In other cases the mix of competing values may be different. What is important in each case is to recognize that unless an examinee is satisfied that the undertaking will only be modified or varied by the court in exceptional circumstances, the undertaking will not achieve its intended purpose.”
The implied undertaking rule is owed to the court. Therefore, the tribunal does not have jurisdiction to waive the implied undertaking rule. The requirement for a court order to waive the implied undertaking rule was addressed in Samaroo v. Canada Revenue Agency, 2016 BCSC 531:
“The general rule respecting the implied undertaking arising in litigation disclosure was summarized by the Alberta Court of Queen’s Bench in Blindman Livestock Feeder Co-op Ltd. (Receiver of) v. Snyder, 2005 ABQB 689 at para. 4 as follows:
‘Generally when a party is obliged by either a rule of court or a court order to give discovery by producing documents or by submitting to oral examination, the party who obtains that discovery is obliged to maintain the documents and testimony in confidence unless relieved of that obligation by court order.’”
The requirement for a court order to waive the implied undertaking rule has also been addressed by the BC Human Rights Tribunal in Manuel v. Sycle.Net Technologies, 2018 BCHRT 31 and Espiritu v. FS Whistler Holdings dba Four Seasons Resort Whistler, 2021 BCHRT 69. In these decisions the tribunal confirmed the requirement for a court order to waive or vary the implied undertaking rule.
Based on the above authorities, a party must seek an order of the court to use a transcript from a court proceeding in a tribunal proceeding. Such an order will only be granted in limited exceptions, and should be part of an overall strategy for how a party will prove their case.
Trevor Thomas is a co-founder and partner at Ascent Employment Law in Vancouver.
