S.C. et al. v. N.S. et al.

[Indexed as: C. (S.) v. S. (N.)]

Ontario Reports Ontario Superior Court of Justice, Matheson J. January 16, 2017 136 O.R. (3d) 121 | 2017 ONSC 353

Case Summary

Civil procedure — Discovery — Production of documents — Deemed undertaking — Rule 30.1.01 of Rules of Civil Procedure not authorizing use of discovery evidence for impeachment purposes in another proceeding — Party who wishes to use discovery evidence for that purpose required to seek directions of civil court with notice to other party — Defendant who failed to do so before using part of plaintiff's compelled documentary production for impeachment purposes in parallel criminal proceedings breaching deemed undertaking — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.1.01.

The plaintiff brought a civil action for damages for sexual assault. The defendant was also facing criminal charges arising from the same events. The plaintiff had served an affidavit of documents together with copies of her documentary productions in the civil action. The documentary productions included extensive private information such as medical and counselling records. The defendant's civil defence counsel provided his criminal defence counsel with copies of the productions, which the criminal defence counsel used to impeach the plaintiff's credibility without notice to the plaintiff and without seeking directions from the court in the civil action. The defendant brought a motion for a declaration that he had not breached the deemed undertaking in rule 30.1.01 of the Rules of Civil Procedure or, in the alternative, for an order under rule 30.1.01(8) that the deemed undertaking not apply in the particular circumstances of this case, nunc pro tunc.

Held, the motion should be dismissed.

While rule 30.1.01 does not prohibit the use of discovery evidence for impeachment purposes in another proceeding, neither does it authorize this use. The documentary productions were "used" here not only when criminal defence counsel used them to impeach the plaintiff's testimony in the criminal trial but also when civil defence counsel handed over copies of the documents to criminal defence counsel for the criminal proceeding. A party wishing to proceed under the impeachment exception in rule 30.1.01 must seek directions from the court regarding what steps are required in the circumstances of that case. Ordinarily, that motion for directions would be on notice to the producing party but an ex parte motion might be brought where the circumstances justify it. A motion for directions is not the same as a motion under subrule (8) seeking exclusion of documents from the deemed undertaking altogether. The motion for directions is focused on the process that should be followed to allow for impeachment in proper cases. The defendant in this case breached the deemed undertaking. It would not be appropriate to grant the alternative relief requested. The timing of actual notice to the plaintiff could not now be changed, and the criminal trial was now at a materially different stage.

Browne v. McNeilly, [1999] O.J. No. 1919, 99 O.T.C. 326, 41 C.P.C. (4th) 330, 88 A.C.W.S. (3d) 781 (S.C.J.); Goodman v. Rossi (1995), , 24 O.R. (3d) 359, [1995] O.J. No. 1906, 125 D.L.R. (4th) 613, 83 O.A.C. 38, 12 C.C.E.L. (2d) 105, 37 C.P.C. (3d) 181, 56 A.C.W.S. (3d) 267 (C.A.); Hunt v. Atlas Turner Inc., , [1995] B.C.J. No. 758, [1995] 5 W.W.R. 518, 58 B.C.A.C. 94, 4 B.C.L.R. (3d) 110, 34 C.P.C. (3d) 133, 55 A.C.W.S. (3d) 50 (C.A.); Juman v. Doucette, [2008] 1 S.C.R. 157, [2008] S.C.J. No. 8, 2008 SCC 8, 75 B.C.L.R. (4th) 1, [2008] 4 W.W.R. 1, 50 C.P.C. (6th) 207, EYB 2008-130634, J.E. 2008-501, 290 D.L.R. (4th) 193, 372 N.R. 95, 164 A.C.W.S. (3d) 765; K. (S.) v. Lee, [2000] O.J. No. 3423, [2000] O.T.C. 667, 2 C.P.C. (5th) 325, 99 A.C.W.S. (3d) 785 (S.C.J.); R. v. Henry, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 2005 SCC 76, 260 D.L.R. (4th) 411, 342 N.R. 259, [2006] 4 W.W.R. 605, J.E. 2006-62, 376 A.R. 1, 219 B.C.A.C. 1, 49 B.C.L.R. (4th) 1, 202 C.C.C. (3d) 449, 33 C.R. (6th) 215, 136 C.R.R. (2d) 121, EYB 2005-98899, 67 W.C.B. (2d) 809; R. v. Nedelcu, [2012] 3 S.C.R. 311, [2012] S.C.J. No. 59, 2012 SCC 59, 270 C.R.R. (2d) 177, 297 O.A.C. 93, 2012EXP-3883, J.E. 2002-2078, 436 N.R. 1, 35 M.V.R. (6th) 1, 96 C.R. (6th) 391, 290 C.C.C. (3d) 153, 353 D.L.R. (4th) 199, 30 C.P.C. (7th) 14, 104 W.C.B. (2d) 460, revg [2011] O.J. No. 795, 2011 ONCA 143, 227 C.R.R. (2d) 364, 7 M.V.R. (6th) 10, 276 O.A.C. 106, 269 C.C.C. (3d) 1, 83 C.R. (6th) 41, 5 C.P.C. (7th) 16, 93 W.C.B. (2d) 699, revg [2007] O.J. No. 1188, 41 C.P.C. (6th) 357, 154 C.R.R. (2d) 171, 46 M.V.R. (5th) 129, 73 W.C.B. (2d) 640, ; R. v. Prosa, [2015] O.J. No. 7134 (S.C.J.), consd

Other cases referred to

Bowman v. Zibotics, [2010] O.J. No. 3393, 2010 ONSC 4422 (S.C.J.); McInerney v. MacDonald, , [1992] 2 S.C.R. 138, [1992] S.C.J. No. 57, 93 D.L.R. (4th) 415, 137 N.R. 35, J.E. 92-917, 126 N.B.R. (2d) 271, 12 C.C.L.T. (2d) 225, 7 C.P.C. (3d) 269, 34 A.C.W.S. (3d) 164; Orbixa Technologies Inc. v. Ribeiro, [2015] O.J. No. 6358, 2015 ONSC 7184 (S.C.J.); P. (D.) v. Wagg (2004), , 71 O.R. (3d) 229, [2004] O.J. No. 2053, 239 D.L.R. (4th) 501, 187 O.A.C. 26, 184 C.C.C. (3d) 321, 46 C.P.C. (5th) 13, 120 C.R.R. (2d) 52, 130 A.C.W.S. (3d) 1098 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 13 Criminal Code, R.S.C. 1985, c. C-46, ss. 276 [as am.], 278.1, 278.2 [as am.], 278.3 [as am.], (5) [as am.], 278.4 [as am.], 278.5 [as am.], 278.6 [as am.], 278.7 [as am.], 278.8 to 278.9 [as am.], 698 [as am.] Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 2 [as am.], 13

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30, 30.1, 30.1.01, (1), (2), (3), (4), (5), (6), (7), (8), 30.10, 31, 31.06(2)

Authorities referred to

Matthews, Paul, and Hodge M. Malek, Discovery (London: Sweet and Maxwell, 1992) Watson, Garry D., and Michael McGowan, Ontario Civil Practice 2017 (Toronto: Carswell, 2016)

MOTION by the defendant for a declaration that he had not breached the deemed undertaking and for alternative relief.

Counsel: Robin Parker, Angela Chaisson, Sari Feferman, for plaintiffs. William McDowell, for defendant N.S. Frank Addario and Andrew Guaglio, for Eric Neubauer, non-party.

[1] MATHESON J.: — The moving party defendant seeks declaratory and other relief regarding the deemed undertaking imposed by rule 30.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] This motion brings to the forefront issues regarding the relationship between rule 30.1.01 and other proceedings. In this action, the plaintiffs seek damages for sexual assault. There is also a criminal sexual assault trial underway before the Ontario Court of Justice, arising from the same events. The plaintiff/complainant's compelled documentary productions in this civil action, including medical and counselling records, were used by the moving party (the defendant/accused) in those parallel criminal proceedings without any advance notice or other steps being taken regarding the use of the documents in either proceeding. Counsel to the moving party defendant/ accused relies upon the impeachment exception in subrule 30.1.01(6) for his use of the plaintiff's civil productions in the criminal trial, submitting that it is automatic, defeats any reasonable expectation of privacy and requires no judicial oversight.

[3] All participants in this motion acknowledge that the issues before me are novel: there is no definitive guidance in the case law before me regarding the mechanics of the impeachment exception. However, in the cases that are before me, there was always advance notice of the intended use for impeachment. Here, there was none.

[4] The undertaking in rule 30.1.01 is an undertaking to this court. This court has an oversight role regarding compliance with the undertaking, which is not restricted to addressing breaches of the undertaking. Oversight may also be required when dealing with the exceptions to the rule. Unlike the other exceptions to the deemed undertaking, the impeachment exception raises numerous issues and interests, which vary depending on the specific circumstances. The "automatic" approach advanced by the moving party would allow for the undertaking to be entirely or substantially defeated. It is therefore necessary that parties wishing to proceed under the impeachment exception seek directions of this court regarding how to proceed in the particular circumstances. Ordinarily, that motion would be on notice to the party whose compelled discovery is proposed to be used. I allow for the possibility that the motion could be brought ex parte and it would be up to the motion judge to decide whether or not there should be notice.

[5] In this case, the moving party ought to have sought directions from this court, on notice to the plaintiffs, before using the plaintiffs' documentary productions in the criminal proceeding. The moving party did not do so and therefore failed to deploy the exception properly, breaching the undertaking.

[6] This is not a determination of whether the documents can be used in the criminal trial. This decision relates only to responsibilities under rule 30.1.01 of the Rules of Civil Procedure. I am not deciding any issue regarding the admissibility of evidence, scope of cross-examination or any other matter regarding the conduct of the criminal proceedings. Those matters are properly decided by the criminal trial judge.

[7] The counsel directly involved in the events in question are junior. No finding of bad faith is sought before me regarding the course of conduct giving rise to this motion. When senior counsel became involved, senior counsel concluded that notice and judicial involvement would have been beneficial, albeit without conceding that those steps were required.

Events Giving Rise to Motion

[8] The plaintiff S.C. (the plaintiff/complainant) alleges that her former boyfriend N.S. (the defendant/accused or moving party) assaulted and sexually assaulted her on two occasions in 2014, once in Waterloo and once in Toronto. As a result, criminal proceedings were instituted in Waterloo and in Toronto in 2014.

[9] The criminal proceedings are youth justice court proceedings because the defendant/accused was a young person at the time of the allegations: Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 2, 13.

[10] In early 2015, this civil action was commenced, seeking damages arising from the same two incidents. The other two plaintiffs are the plaintiff/complainant's parents.

[11] Statements of defence were delivered by the defendant/ accused and the University of Waterloo. The University of Waterloo takes no position on this motion.

[12] At the time of delivery of his statement of defence in February 2015, the defendant/accused was self-represented in the civil action.

[13] In November 2015, the plaintiff/complainant served an unsworn affidavit of documents together with copies of her documentary productions in the civil action. Around this time, the defendant/accused retained counsel of record in the civil action. The examinations for discovery that had been scheduled were delayed due to the appointment of counsel. Due to further intervening events, oral examinations for discovery have not taken place.

[14] The plaintiff/complainant's documentary productions comprised hundreds of pages of documents. They include extensive private information. They include medical records from four different health providers. They include counselling records. The productions include medical test results and photographs. The productions also include academic records with grades. I will not refer to any details, but the level of private information in these records is very high.

[15] The Waterloo criminal trial proceeded to an acquittal. There is no suggestion that the plaintiff/complainant's productions in the civil action were used in the Waterloo criminal trial.

[16] More than six months after the documents were produced, the defendant/accused's civil counsel provided him with a copy of the entirety of the plaintiffs' productions in the civil action. Civil counsel has attested that he believed his client had already received the documents directly. In any event, civil counsel provided those copies on or around May 25, 2016. At this point, there was activity leading up to the Toronto criminal trial.

[17] The non-party participating in this motion, Eric Neubauer, is the criminal defence counsel representing the defendant/ accused in the Toronto criminal proceedings. In or about May 2016, the defendant/accused's civil counsel and criminal counsel discussed what use could be made of what is described as "inconsistent information" in the plaintiffs' productions. The defendant/accused's civil counsel, in his affidavit on this motion, makes the following bald assertion: "Information in the Plaintiffs' productions is inconsistent with evidence of the complainant in the criminal proceedings."

[18] Civil counsel sent a copy of all the plaintiffs' productions to criminal defence counsel by e-mail dated May 31, 2016. The May 31, 2016 e-mail from civil counsel said that the deemed undertaking did not prevent the use of the documents to impeach. An excerpt from the rule was provided in the e-mail, including the exception for impeachment, which says that the rule "does not prohibit" use of discovery evidence to impeach. It would have been wrong to suggest that the deemed undertaking rule or this exception authorized this use or trammeled on other restrictions that may apply, as discussed below.

[19] In the May e-mail, civil counsel confirmed his understanding that the documents were being provided for the purpose of impeachment. Although the documentation is imperfect, I accept the submissions of counsel to the defendant/accused that the arrangements between his civil and criminal counsel were intended to have the force of an undertaking to limit the use of the productions to impeachment. In taking this step, civil counsel was following a discussion in Watson and McGowan, Ontario Civil Practice 2017 (Toronto: Carswell, 2016), at p. 798. That discussion supports the need for an undertaking to limit use in order for counsel in another proceeding to review the documents to begin with (even though not expressly required under rule 30.1.01) but does not go on to consider the other issues before me.

[20] No application was brought in the criminal proceeding in respect of the use of the productions from the civil action. Other applications were brought.

[21] Criminal defence counsel had scheduled a pre-trial motion in the Toronto criminal proceedings, returnable May 5, 2016. He had sought directions regarding whether he was required to bring a full application under ss. 278.1 to 278.9 of the Criminal Code, R.S.C. 1985, c. C-46 in order to cross-examine the plaintiff/complainant on an excerpt from her personal diary that was already in criminal defence counsel's possession.

[22] The motion for directions was abandoned in favour of a ss. 278.1 to 278.9 application, which was heard on June 1, 2016 and decided on August 15, 2016. An application under s. 276 was also brought seeking to ask the plaintiff/complainant about her prior sexual history. Decisions arising from these applications and any related reasons for decision are not before me.

[23] The Toronto criminal trial commenced on August 16, 2016 before Weagant J. of the Ontario Court of Justice. The plaintiff/complainant commenced her testimony on August 16 and continued the next day. Another s. 276 application was brought. The trial was adjourned. The second s. 276 application was heard September 29, and the trial resumed October 6, 2016. Decisions arising from these applications and any related reasons for decision are not before me.

[24] On October 6, 2016, criminal defence counsel commenced his cross-examination of the plaintiff/complainant. In the course of his cross-examination, he began to ask questions relating to information from the medical records that form part of the plaintiffs' productions in the civil action. A specific treating doctor was mentioned. The questioning suggests that the plaintiff/complainant told that physician about another incident of assault that the plaintiff/complainant did not include in her report to the police. An objection was raised because of the reference to the medical record. The trial was adjourned. As of that point in the cross-examination, no documents from the productions had been tendered as trial exhibits.

[25] It was then revealed that the productions from the civil action had been provided to criminal counsel without any notice or other steps in either proceeding. There was pointed correspondence between counsel and related demands for return of the documents.

[26] Senior civil counsel became involved, and wrote an explanatory letter to the plaintiffs' counsel. Senior civil counsel maintained the position that there had been no breach of rule 30.1, but did observe that it might have been better if the issue had been raised on notice to the plaintiff/ complainant and also that judicial guidance could have been of assistance.

[27] This motion was then brought, seeking the following:

(1) a declaration that the deemed undertaking in rule 30.1.01 has not been breached by the defendant/accused;

or, in the alternative,

(2) an order under subrule 30.1.01(8) that the deemed undertaking not apply in the particular circumstances of this case, nunc pro tunc.

[28] The criminal trial is scheduled to resume on January 17, 2017.

Evidence Regarding Inconsistencies

[29] The trial transcript of the cross-examination in question provides some information regarding what is described before me as the "first issue" to be advanced in the cross-examination in the criminal trial as an inconsistency. In oral submissions, counsel also indicated that only a few pages of the productions relate to the inconsistencies relied upon. The moving party submits before me that he is prepared to put forward further particulars of the intended use of the discovery productions, if needed, but only on an ex parte basis.

Analysis

[30] As this motion unfolded before me in court and in later written submissions, the key issues are as follows:

(1) is leave, or notice, or any other step required under rule 30.1.01 in order to use an opposite party's discovery evidence for impeachment in another proceeding under subrule (6); and

(2) if so, should there be an order be made now permitting the use, nunc pro tunc.

[31] A number of sub-issues arose before me, including the inter-relationship between rule 30.1.01 and rights and obligations in the criminal proceedings. While I have considered those submissions, any issue regarding ss. 278.1 to 278.9 of the Criminal Code, the admissibility of evidence, the scope of cross-examination or any other matter regarding the conduct of the criminal proceedings are properly before the criminal trial judge.

Deemed Undertaking under Rule 30.1.01

[32] The impeachment provision in rule 30.1.01 must be considered within the context of the deemed undertaking itself and its purpose and rationale.

[33] Rule 30.1.01 imposes an undertaking on parties to civil litigation. The undertaking is set out in subrule (3), as follows:

30.1.01(3) 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.

(Emphasis added)

[34] As set out in subrule (1), the deemed undertaking applies to all evidence obtained under Rule 30 (documentary discovery) and Rule 31 (examination for discovery), among other things. There is no issue that the undertaking applies to the documentary productions at issue here, subject to exceptions as set out in the rule.

[35] The undertaking is an undertaking to the court. It is a serious matter. A breach of the deemed undertaking may be punishable as a contempt of court: Juman v. Doucette, [2008] 1 S.C.R. 157, [2008] S.C.J. No. 8, 2008 SCC 8, at paras. 27, 29, 34. There are, however, less drastic remedies that may be appropriate: Juman, at para. 29.

[36] The deemed undertaking in rule 30.1.01 is the product of the court's prior recognition of an implied undertaking restricting the use that could be made of discovery evidence: Juman, at para. 34. The rationale for the implied undertaking applies to the deemed undertaking as well.

[37] In Ontario, the implied undertaking was definitively recognized in Goodman v. Rossi (1995), , 24 O.R. (3d) 359, [1995] O.J. No. 1906 (C.A.). It prevented the use of discovery documents or evidence obtained from the opposite party for any purpose other than the proper conduct of the litigation in which the material was produced: Goodman v. Rossi, at paras. 47-49. Leave of the court was required to depart from the implied undertaking.

[38] The undertaking is founded on the compulsory nature of discovery in a civil proceeding: Goodman v. Rossi, at para. 23. Parties are compelled to produce documents and submit to examinations for discovery under Rules 30 and 31 of the Rules of Civil Procedure. During the discovery process, the parties are compelled to disclose information given the public interest in getting at the truth: Juman, at para. 25.

[39] The primary concern underlying the undertaking is the protection of privacy -- discovery is an invasion of the right of an individual to keep one's evidence and documents to oneself: Goodman v. Rossi, at para. 29, adopting Matthews and Malek's Discovery (London: Sweet and Maxwell, 1992), at p. 253; Juman, at paras. 3, 25. In some situations, self-incrimination is also an issue: e.g., Juman.

[40] As put by Binnie J. in Juman, the rationale of the undertaking "rests on the statutory compulsion that requires a party to make documentary and oral discovery regardless of privacy concerns and whether or not it tends to self-incriminate": at para. 3. The party making compulsory production and discovery is therefore entitled to some measure of protection.

[41] As well, protecting privacy encourages a more complete and candid discovery. Litigants have some assurance that their discovery will not be used for a purpose collateral or ulterior to the proceedings in which they were compelled to give discovery: Juman, at para. 26.

[42] In Goodman v. Rossi, the Court of Appeal considered whether the imposition of such an undertaking should more properly be left to the Rules committee. The court concluded that while it was preferable that it be part of the Rules of Civil Procedure, this did not mean that the responsible course was to hold that there was no implied undertaking. The court did, however, make a number of observations for the benefit of the Rules committee regarding potential exceptions to the undertaking: Goodman v. Rossi, at paras. 45-58.

[43] There then came rule 30.1.01, which codified the implied undertaking and incorporated certain exceptions and limitations. The rationales for the undertaking remain the same.

[44] Because certain of the submissions before me relate to the structure of the rule, I quote it here in its entirety:

30.1.01(1) This Rule applies to,

(a) evidence obtained under,

(i) Rule 30 (documentary discovery),

(ii) Rule 31 (examination for discovery),

(iii) Rule 32 (inspection of property),

(iv) Rule 33 (medical examination),

(v) Rule 35 (examination for discovery by written questions); and

(b) information obtained from evidence referred to in clause (a).

(2) This Rule does not apply to evidence or information obtained otherwise than under the rules referred to in subrule (1).

(3) 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.

(4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents.

(5) Subrule (3) does not prohibit the use, for any purpose, of,

(a) evidence that is filed with the court;

(b) evidence that is given or referred to during a hearing;

(c) information obtained from evidence referred to in clause (a) or (b).

(6) Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding.

(7) Subrule (3) does not prohibit the use of evidence or information in accordance with subrule 31.11 (8) (subsequent action).

(8) 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.

(Emphasis added)

[45] The structure of the rule is important. The deemed undertaking only applies to evidence obtained through compelled discovery, as set out in subrules (1) and (2). It does not apply to information obtained through other means.

[46] The deemed undertaking, set out in subrule (3), codifies the implied undertaking: Juman, at para. 34. It prevents the use of evidence or information obtained through the compulsory discovery process for any purposes other than those of the proceeding in which the evidence was obtained.

[47] There are then certain types of use that are not prohibited by the deemed undertaking, as set out in subrules (4) through (7). Each of these exceptions to the deemed undertaking provide that the deemed undertaking "does not prohibit" use in certain circumstances. The use of the phrase "does not prohibit" is key to interpreting the Rule and its impact beyond the civil proceeding in which the discovery was obtained.

[48] By providing that the deemed undertaking "does not prohibit" certain things, the Rule preserves any other restrictions that may apply to the use of the evidence and documents in question beyond the deemed undertaking itself. Rather than saying that the discovery evidence can be used for impeachment, subrule (6) says that the undertaking does not prohibit that use. Any other common law or statutory restrictions still apply. For example, it has long been accepted that a patient has control over the dissemination of his or her medical information: McInerney v. MacDonald, , [1992] 2 S.C.R. 138, [1992] S.C.J. No. 57, at para. 18. That control must give way to statutory compulsion under the Rules, but it is not undermined by the exceptions to the deemed undertaking. Another ready example is an accused's right against self-incrimination under s. 13 of the Canadian Charter of Rights and Freedoms. Obviously, these and any other applicable rights and constraints, as they may apply to a specific case, are undisturbed by the exceptions to rule 30.1.01.

[49] There is then, in subrule (8), the ability to seek a court order that the deemed undertaking does not apply where the interest of justice outweighs any prejudice that would result to a party who disclosed evidence.

"Automatic" Exceptions

[50] The moving party submits that the exceptions in subrules (4) through (7) are "automatic", meaning that there are no prior steps required and there is no role for prior judicial oversight. I disagree.

[51] The deemed undertaking is an undertaking to this court. It belies common sense to suggest that this court has no judicial oversight role with respect to an undertaking given to it. Obviously, this court has a role with respect to the breach of the undertaking, but its role is not so limited. Nor is it limited by subrule (8), which simply provides a general means to seek an order that the undertaking not apply.

[52] Given that the deemed undertaking is an undertaking to this court, it is not necessary to resort to this court's inherent jurisdiction as a basis for judicial oversight. However, if it was necessary, there is no question that this court has the inherent power to control its process and protect that process from being obstructed: P. (D.) v. Wagg (2004), , 71 O.R. (3d) 229, [2004] O.J. No. 2053 (C.A.), at paras. 24 and 27.

[53] In Wagg, a screening process was created and imposed by the court despite a party's "right" to disclosure and production of a Crown brief under the Rules of Civil Procedure. This was done despite the plain words of Rule 30, requiring production. This was done to protect important interests arising from the production of Crown briefs in civil litigation: Wagg, at paras. 17 and 28. Among other interests considered, the court had regard for the privacy interests, including those of third party witnesses.

[54] Unlike the exceptions to the deemed undertaking in subrules (4), (5) and (7), the impeachment exception gives rise to considerable complexities and the need for judicial oversight, somewhat similar in nature to the issues at stake that were addressed in Wagg.

Impeachment Provision

[55] The impeachment provision in subrule (6) provides as follows:

30.1.01(6) Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding.

(Emphasis added)

[56] Under this subrule, "another proceeding" can include a criminal proceeding: R. v. Nedelcu, [2007] O.J. No. 1188, , 41 C.P.C. (6th) 357 (S.C.J.), revd [2011] O.J. No. 795, 2011 ONCA 143, guilty verdict affd [2012] 3 S.C.R. 311, [2012] S.C.J. No. 59, 2012 SCC 59; Bowman v. Zibotics, [2010] O.J. No. 3393, 2010 ONSC 4422 (S.C.J.), at paras. 12-13.

[57] Again, this subrule provides that the deemed undertaking "does not prohibit" certain use. It does not purport to oust any other legal restrictions that may apply to the use of the evidence.

[58] Subrule (6) is silent on the question of what steps should be followed if intending to use discovery evidence for impeachment in other proceedings. The plaintiffs submit that judicial oversight was required, which would include notice to the plaintiffs. In the few cases before me, there was either a leave application or some other sort of notice was given.

Impeachment Cases

[59] Both of the leading cases on the implied undertaking only raised the issue of use for impeachment in a general way (since impeachment was not an issue in either case). In Goodman v. Rossi, the issue was the use of information obtained through discovery to commence another lawsuit. Among its observations for the Rules committee, the Court of Appeal indicated that it would be useful to consider whether the implied undertaking should extend to preventing the use of material for impeachment purposes. In that context, the court observed that it could defeat the impeachment process to require leave of the court for this purpose: at para. 53.

[60] In Juman, a police investigation was underway regarding an incident at a day care, and the authorities were seeking the discovery transcript of a day care worker who was a target of the investigation. The court denied the request for the transcript, concluding that the request was an attempt to sidestep the appellant's right to silence in the face of a police investigation. In discussing the implied undertaking generally, the court addressed impeachment and held that an undertaking implied by the court (or imposed by the legislature) to make civil litigation more effective should not permit a witness to "play games" with the administration of justice: at para. 41. The court held that if a contradiction were discovered, the implied undertaking would afford no shield to its use for purposes of impeachment. "Any other outcome would allow a person accused of an offence ae[w]ith impunity [to] tailor his evidence to suit his needs in each particular proceeding'": at para. 41, citing R. v. Nedelcu.

[61] In R. v. Henry, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 2005 SCC 76, cited in support of the impeachment discussion in Juman, the issue was the use of an accused's testimony in a prior criminal trial. That case did not address the implied or deemed undertaking on discovery at all.

[62] The other case referred to in Juman does relate to possible impeachment. In R. v. Nedelcu, the accused was charged with impaired driving and dangerous driving. There was also a parallel civil action for personal injury damages arising from the same incident. Counsel for the plaintiff in the civil action gave the Crown prosecutor a copy of the transcript of the accused's examination for discovery. The prosecutor then sought permission in the criminal trial to use the discovery evidence in the cross-examination of the accused, to demonstrate an alleged inconsistency in the accused's evidence in the criminal trial.

[63] A number of issues were raised in R. v. Nedelcu, including aspects of rule 30.1.01. The criminal trial judge found that the use of the transcript fell within the impeachment exception to rule 30.1.01. The Court of Appeal held that the discovery evidence should have been treated as inadmissible, even for the purpose of challenging the accused's credibility, by virtue of s. 13 of the Charter. The deemed undertaking and the impeachment exception were not at issue on the appeal, but Armstrong J.A., for the court, expressed "some doubt whether this rule can apply in these circumstances": at para. 20. The deemed undertaking was not at issue before the Supreme Court of Canada. The majority of that court overturned the Court of Appeal and restored the decision of the trial judge without expressly addressing rule 30.1.01.

[64] In R. v. Prosa, [2015] O.J. No. 7134 (S.C.J.), the accused was charged with a number of criminal offences arising from a motor vehicle accident in which two people were killed and a third person seriously injured. In addition to the criminal proceedings, a civil proceeding had been commenced arising from the same incident in which the accused had submitted to an examination for discovery. One of the counsel involved in the civil proceedings provided a copy of the discovery transcript to the Crown prosecutor, who read the transcript and decided he might wish to use it at trial. As a result, the Crown had a subpoena issued under s. 698 of the Criminal Code requiring the court reporting agency that had transcribed the examination for discovery to provide a certified copy to the court in the criminal proceeding. At the commencement of the trial, a representative of the reporting service attended and deposited a certified copy of the transcript with the court.

[65] In R. v. Prosa, criminal defence counsel objected to the use of the transcript on the basis that it had been provided to the Crown prosecutor in violation of rule 30.1.01. The criminal trial was in the Superior Court. The trial judge found that the provision of the transcript by counsel in the civil proceeding was likely a breach of rule 30.1.01. However, he found that the Crown was not subject to the rule. The Crown was neither a party to nor counsel on the civil matter. The trial judge then went on to consider other relevant factors, finding that the Crown prosecutor would have been entitled to apply for a subpoena under s. 698 to obtain the transcript, as he ultimately did, and would have satisfied the requirements of that section. He also relied on the trial decision in R. v. Nedelcu as implicitly approved by the Supreme Court. He permitted use of the transcript.

[66] None of these cases address the issues that could arise where the compelled discovery was from a plaintiff who was also a complainant in a sexual assault trial, and the documents at issue are medical and counselling records and other sensitive personal information.

[67] There are two cases involving parallel proceedings at the College of Physicians and Surgeons of Ontario, neither of which rely on the impeachment exception. In both cases, leave of the court was sought to use the discovery evidence. In Browne v. McNeilly, [1999] O.J. No. 1919, 41 C.P.C. (4th) 330 (S.C.J.), the defendant physicians moved for leave to use the plaintiff's discovery transcript in parallel discipline proceedings. Leave was granted. Similarly, in K. (S.) v. Lee, [2000] O.J. No. 3423, 2 C.P.C. (5th) 325 (S.C.J.), the defendant physician sought leave to use therapeutic records produced in a civil action against him for sexual abuse in parallel proceedings before the college. Again, leave was granted. In neither of these cases did the defendant simply rely on the impeachment exception and go ahead without notice of any kind.

[68] Many of the cases provided to me are leave applications. For further example, in Orbixa Technologies Inc. v. Ribeiro, [2015] O.J. No. 6358, 2015 ONSC 7184 (S.C.J.), the plaintiff applied for leave to be relieved of the deemed undertaking in order to, among other things, give discovery transcripts and productions to the police and Crown Attorney's office in order to consider charges of perjury. In that case, leave was denied.

Broad and Varied Considerations

[69] There is no case before me where compelled discovery was used for impeachment in another proceeding without any notice to the opposite party whatsoever. Because there was notice in the above cases, the party whose discovery was at issue was able to come forward and make full argument on whatever the issues were in those specific circumstances. In R. v. Nedelcu and R. v. Prosa, it was the accused who was facing the use of his compelled discovery. A number of important considerations, such as s. 13 of Charter, were advanced in the argument.

[70] There is no doubt that other statutes and legal principles under our law constrain the use that can be made of certain kinds of evidence. Increasingly, there are statutory and legal principles recognizing privacy interests and how those interests must be addressed at law. There are also restrictions on the use of evidence that arise from jurisprudence recognizing the need to balance certain interests, such as the issue of cross-examination on prior sexual conduct. In considering the mechanics of the impeachment exception, it must therefore be borne in mind that other restrictions on the use that can be made of evidence may exist and may differ from case to case. The rule preserves those restrictions by providing that the exceptions "does not prohibit" certain use, rather than saying the use is permitted.

[71] It must also be borne in mind that compelled discovery is not necessarily limited to private information about a party. It is commonplace that a company, for example, may have to make compelled discovery about employees, contractors, persons on their premises or other third parties not formally before the court. Further, any party may have to give compelled discovery about witnesses from whom information has been obtained that is relevant to the civil litigation. In addition, rule 31.06(2) ordinarily requires disclosure of names and addresses of persons with knowledge of the matters at issue in the litigation, and rule 30.10 permits documentary discovery of non-parties with leave of the court. Thus, in considering the impeachment exception, it must be borne in mind that the compelled evidence and documentation at issue may include third party information and engage third party privacy interests.

[72] There are important interests to address on both sides of this matter. Use for impeachment is not prohibited under rule 30.1.01 and the ability to impeach may be critical to the interests of justice. In the case before me, the moving party is accused of serious offences and argues forcefully that the use of at least some of the discovery documents is critical to making full answer and defence to those charges. Yet the mechanics of how to use compelled discovery evidence for impeachment are not expressly set out in rule 30.1.01, nor have they been extensively explored in the case law under the rule.

[73] The moving party submits that nothing was required other than the undertaking to limit the use to impeachment: no notice, no leave, no ss. 278.1 to 278.9 or other application under the Criminal Code in the criminal trial; no judicial oversight; no other obligations or restrictions.

[74] Indeed, the moving party's criminal counsel submits that as a result of the impeachment exception to rule 30.1.01, a party in civil litigation has no reasonable expectation of privacy in his or her documentary productions at all. This position is contrary to the purpose, rationale and express words of rule 30.1.01, which is intended to preserve a measure of privacy and limit use in other proceedings.

[75] I have significant difficulty with the submission that nothing else was required prior to permitting the use of the entirety of a party's compelled documentary discovery in another proceeding. On this approach, a party could hand over the entirety of an opposite party's compelled discovery to a third party on the mere possibility that there may be a chance to impeach sometime in the future. I say "mere possibility" not as a comment on the facts before me, but because in the absence of judicial oversight that is what could transpire. This approach would allow for wide sharing of intensely personal information outside the civil proceeding for which it was produced, secretly, without any notice to the person and people whose private information is being passed around.

[76] The moving party's position would also allow for fishing expeditions where a third party could review extensive personal information in the hopes of setting up contradictions. And, if an impeachment opportunity did not materialize, the producing party would remain unaware that his or her private documents (potentially including medical, psychiatric and counselling records) were handed to third parties and read, and would be unable to assert whatever other rights may exist at law regarding those documents.

[77] The moving party further submits that if the plaintiffs wanted to protect any documents or other discovery evidence from use for impeachment, they should have proactively sought a protective order of some kind in the civil proceeding. This approach would cause a proliferation of motions to the court seeking protective orders "just in case" something secretly occurred with the documents under the "automatic" exception for impeachment. This is not a practical solution: Hunt v. Atlas Turner Inc., , [1995] B.C.J. No. 758, 4 B.C.L.R. (3d) 110 (C.A.), at para. 63.

[78] Documentary productions often include sensitive information. In any personal injury action, for example, there is normally extensive medical documentation with highly private information. In any action, there could be third party witness information, for a further example. In my view, this approach would be cumbersome, hypothetical and inefficient.

[79] There is a paucity of cases regarding the impeachment exception. It is therefore reasonable to conclude that the impeachment exception simply does not arise on a frequent basis and would not justify imposing an obligation to seek a protective order "just in case".

[80] The submission was also made before me that the plaintiff chose to commence this civil action and in doing so gave up any right to privacy. She could have decided not to sue. On this theory, there would be no implied undertaking at law, let alone a deemed undertaking. In every civil case, the plaintiff has chosen to sue. If that choice defeated all privacy interests, the deemed undertaking would not exist. Instead, the court and the Rules of Civil Procedure have acknowledged that plaintiffs remain entitled to some measure of protection of their privacy and are entitled to limitations on the use of their discovery evidence outside the proceedings for which the discovery was compelled.

What is Meant by "Use"

[81] There was some argument before me on the subject of what conduct constitutes "use" for impeachment under subrule (6). All would agree that in this case there was use, given the express questioning on the documents in the cross-examination at the criminal trial. That was unquestionably "use".

[82] However, the plaintiff submits that the "use" began with the productions being given to criminal defence counsel and read for the purpose of the criminal proceeding. The criminal counsel's role related to "another proceeding" under the subrule. Subject to the exceptions, the deemed undertaking precludes all parties and their lawyers from using documentary discovery for any purposes other than those of the proceeding in which the evidence was obtained.

[83] The moving party argues that criminal defence counsel was, as an agent for his client, presumptively entitled to have and read the civil productions even though his retainer was for another proceeding. The moving party relies on Hunt v. Atlas Turner Inc.

[84] In Hunt, British Columbia Court of Appeal reconsidered a prior decision in which it had found that there was no implied undertaking. The court overturned its prior decision, but observed that proper use would include the right to disclose documents to other advisors, such as potential expert witnesses: at paras. 64-65. The court did not propound a blanket inclusion of all advisors in any proceeding whatsoever. Further, the court was not interpreting a rule, let alone rule 30.1.01. Lastly, the proceedings before the court were on notice to all concerned.

[85] Given the purpose and express rule words of rule 30.1.01, the interpretation of "use for impeachment in another proceeding" should be focused on the proceeding. Giving copies of discovery evidence for the purpose of another proceeding is use: R. v. Prosa, at para. 14. Otherwise, documentary productions could be handed to all manner of people not involved in the civil proceeding to be read, with impunity, since that would not be "use". That interpretation would fundamentally undermine the rationales of rule 30.1.01. The deemed undertaking itself, in subrule (3), controls "use". If use does not include disclosure, there is nothing accomplished by the deemed undertaking. And disclosing documents carries with it the obvious next step, that the documents will be read. Certainly, reading private medical records and counselling records impinges on privacy.

[86] Thus, handing copies to a third party would, itself, be use. However, the case before me is more complicated. There is no question that the defendant/accused was entitled to have and read the plaintiffs' productions himself, since he was entitled to have them for his defence of the civil proceeding. Further, since the defendant/accused can know the contents of the documents, in my view he can talk to his criminal defence counsel about what he has learned. The issue is whether the documents themselves can be handed over and read for purposes of the criminal proceeding, as took place here. I conclude that those steps would be "use".

[87] A related issue is the scope of the disclosure under the impeachment exception. I was advised in oral submissions that only a few pages of the plaintiffs' documentary productions related to the inconsistency relied upon by counsel. Yet hundreds of pages of documents were handed over for use in the criminal proceeding. This has given rise to submissions before me about an improper fishing expedition and opportunity to create inconsistencies.

[88] However, as noted in the discussion in Watson and McGowan, how can counsel in the other proceeding identify potential inconsistencies without reviewing the documents? The undertaking that was obtained to limit use to impeachment is of some assistance in this regard but does not fully address all issues.

[89] In my view, these issues can be addressed on a motion for directions within the context of a specific situation more easily than they can be addressed in the abstract. And the directions given may differ greatly depending on the circumstances. This underscores the need to move for directions in individual cases.

Requirement to Seek Directions

[90] I conclude that a broad range of different issues and interests can arise under the impeachment exception, which vary from case to case and cannot fairly be addressed by treating subrule (6) as an "automatic" exception that requires no notice or judicial oversight. Otherwise, the deemed undertaking could be substantially or entirely undermined, without any notice or opportunity to address the interests at stake in any particular case. The automatic exception approach risks turning this exception into a permission, contrary to the words "do not prohibit" in subrule (6).

[91] It is therefore necessary that parties wishing to proceed under the impeachment exception seek directions from this court regarding what steps are required in their particular circumstances. Ordinarily, that motion would be on notice to the producing party, although I allow for the possibility that an ex parte motion could be brought. In that case, it would be up to the motion judge to determine whether the circumstances justified proceeding ex parte or whether there should be notice: Juman, at para. 50.

[92] The judge hearing the motion for directions, with full argument, would be able to determine what additional steps should be taken, if any, to ensure that the use of the compelled discovery was consistent with the rule. The judge would have regard for issues such as the nature of the evidence in question; the nature of the other proceeding; the interests at stake; any other legal principles or restrictions that apply to the documents or transcript; and whether any non-party should have notice. If both proceedings are before the Ontario Superior Court, the rule 30.1.01 issue could be addressed by the judge in either proceeding: e.g., R. v. Prosa. That is not the case here.

[93] A motion for directions is not the same as a motion under subrule (8) seeking exclusion of documents from the deemed undertaking altogether. The motion for directions is focused on the process that should be followed to allow for impeachment in proper cases. There may be overlap in the issues that may arise, but the focus is different.

Notice in this Case

[94] The moving party argued strenuously that notice would defeat the possible impeachment in this case. I understand that the defendant would prefer the element of surprise. But even in the criminal context, the element of surprise is not available to the defendant/accused when seeking access to this type of record.

[95] Specifically, Parliament has developed a process under ss. 278.1 through 278.9 of the Criminal Code that must be followed whenever an accused seeks access to medical or counselling records of the complainant in a sexual assault trial. As set out in the Preamble of the bill putting forward those sections, Parliament has recognized that the compelled production of personal information may deter complainants of sexual offences from reporting the events to police and from seeking the necessary treatment, counselling or advice; that production may breach a person's right to privacy and equality; and that the production to the accused of such information may be necessary in order for an accused to make full answer and defence. Given these competing interests, ss. 278.1 through 278.9 set out a careful and detailed process by which an accused may request, and may or may not receive such records. Importantly, this process takes place on notice to the complainant: s. 278.3(5).

[96] Given that an accused seeking the same kind of documents must give notice to the complainant in a criminal proceeding, I cannot see why notice would not also be appropriate in a civil proceeding when the issue is use in a criminal proceeding.

[97] I also observe that notice does not mean the provision of the full particulars of a hoped-for impeachment. It does mean that the defendant here ought to have given the plaintiff/ complainant notice of the intention to use the compelled documentary discovery for impeachment and sought directions about whether anything further was required. The judge hearing the motion may or may not have required additional steps.

Rules Committee

[98] The moving party submits that any gaps in rule 30.1.01 should be addressed by the Rules committee, not by me. The same argument arose in Goodman v. Rossi, when the implied undertaking was recognized by the Court of Appeal. I proceed on the same basis as that case. As stated by Morden A.C.J.O., I would prefer if the issues raised before me were expressly addressed in the Rules, but this does not mean that the responsible course is to hold that the exception in subrule (6) can be deployed automatically and secretly despite the important and varied interests at stake: Goodman v. Rossi, at para. 45.

[99] In turn, I follow the approach taken in Wagg of requiring a process that is not expressly set out in the discovery rules. I observe that in the case of Crown briefs, the Rules committee has not seen the need, since Wagg, to amend the Rules to expressly incorporate that process. The process continues to be followed without the need for changes to the Rules of Civil Procedure.

Alternative Relief Requested

[100] In the alternative, the moving party seeks an order under subrule (8) excluding all of the plaintiffs' documents from the deemed undertaking, nunc pro tunc. In support of this alternative relief, the moving party has made a number of submissions about the importance of the right to make full answer and defence, the importance of the credibility of the complainant, the ramifications of a conviction and the good faith conduct that led to the motion before me. I accept that these are all important considerations.

[101] The moving party ought to have sought directions from this court regarding how to proceed under subrule (6), on notice to the plaintiff/complainant, when the potential use for impeachment was identified in around May 2016. The timing of actual notice cannot now be changed.

[102] The criminal trial is now at a materially different stage. Based on the argument before me, there are significant issues regarding whether an application under ss. 278.1 through 278.9 application should have been brought in the criminal proceedings in respect of the medical records in question, and issues regarding the scope of the cross-examination and admissibility of the evidence obtained through the civil productions. These issues are properly for the criminal trial judge.

[103] While I understand the criminal trial judge may (or may not) factor in the events and obligations in the civil proceeding in the determination of the issues in that trial, those matters are sufficiently described in these reasons for decision.

[104] I am also concerned about the request that I make a wholesale exclusion from the deemed undertaking covering all of the documentary productions when I have been told that only a few pages are relevant to potential inconsistencies (without identifying those specific documents).

[105] I therefore am not prepared to grant a blanket ruling excluding all of the documents from the deemed undertaking, nunc pro tunc. Such an order goes well beyond what could be justified at this stage and does not really respond to what has transpired.

[106] This is not a determination of whether the documents can be used in the criminal trial. That is properly decided by the criminal trial judge.

Disposition of Motion

[107] This motion is dismissed.

[108] On costs, I note that the novelty of the issues before me is a factor to be considered. If the parties are unable to agree on costs, the plaintiffs shall make submissions by delivering brief written submissions together with a costs outline by February 10, 2017. The moving party (and non-party if costs are sought against him) may respond by delivering brief written submissions and any other material by February 24, 2017. This timetable may be modified on agreement between the participants in the motion provided that I am notified of the new timetable by February 10, 2017.

Motion dismissed.

End of Document