S. Feferman

The appellant faced criminal charges for sexual assault and was also sued civilly by the complainant.

In the civil action, the appellant obtained discovery evidence, which his civil counsel shared with his criminal counsel to impeach the complainant at the criminal trial.

The motion judge ruled that the appellant needed court leave under rule 30.1(8) to use the evidence for impeachment and that sharing it with criminal counsel breached the deemed undertaking.

The Divisional Court allowed the appeal, holding that rule 30.1(6) permits the use of discovery evidence for impeachment without prior court authorization, and that sharing the evidence with legal advisors does not breach the undertaking.

The defendant in a civil sexual assault action sought leave to appeal an order dismissing his motion for a declaration that the deemed undertaking rule did not apply to the disclosure of discovery evidence to his criminal counsel for impeachment purposes.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order requiring pre-approval to use the impeachment exception, and noting the issue is of sufficient importance to the profession and administration of justice.