The Implied Confidentiality of Documents In Litigation

Implied Confidentiality

deals with the issue of confidentiality of document exchange in litigation relating to the disclosure of documents to non-parties to the litigation, without the consent of the actual parties to the litigation.

The court held that to disclose discovery information by the parties to nonparties, constitutes a breach of the implied undertaking of confidentiality which attaches to information obtained through discovery.

This rule will not be affected by the introduction of the new WESA legislation.

The Court of Appeal in Hunt v. T&N plc (1995), 4 B.C.L.R. (3d) 110 at paragraph 64 applies in British Columbia:

“Accordingly, we would uphold the obligation which the law has generally imposed upon a party obtaining discovery of documents, and we would require such party, in appropriate cases, to obtain the owner’s permission or the court’s leave to use the documents other than in the proceedings in which they are produced.”

The court in Sovani went on to discuss, apparently without the argument of counsel, that the matter would also be given the force of law by the freedom of information and protection of privacy act:(FIPA)

Use of personal information
32 A public body must ensure that personal information in its custody or under its control is used only
(a) for the purpose for which that information was obtained or compiled, or for a use consistent with that purpose (see section 34),
[35] Section 33 provides:
Disclosure of personal information
33 A public body must ensure that personal information in its custody or under its control is disclosed only as permitted under section 33.1 or 33.2.
[36] Section 33.1 (1 )(j)(i) & (ii) provide:
Disclosure inside or outside Canada


2007 BCSC 403 Sovani v. Gray et al; Jampolsky v. Shattler et al

33.1 (1) A public body may disclose personal information referred to in section 33 inside or outside Canada as follows:

0) in the case of the Insurance Corporation of British Columbia, if
(i) the information was obtained or compiled by that public body for purposes of insurance provided by the public body, and
(ii) disclosure of the information is necessary to investigate, manage or settle a specific insurance claim;

[37] Section 34 provides:

Definition of consistent purposes

34 (1) A use of personal information is consistent under section 32 or 33.2 with the purposes for which the information was obtained or compiled if the use

(a) has a reasonable and direct connection to that purpose, and
(b) is necessary for performing the statutory duties of, or for operating a legally authorized program of, the public body that uses or discloses the information or causes the information to be used or disclosed.

[38] Assuming, without deciding, that information obtained through the litigation discovery process by counsel retained by ICBC to represent insured parties is thereby “in the custody and control” of ICBC, the combined effect of these sections appears to be that such information may be disclosed to a non party to the litigation only where that is “necessary to investigate, manage or settle a specific insurance claim”, again assuming, without deciding, that litigation is comprehended by those words.

[39] It is therefore arguable that the disclosure of the fruits of discovery in these two cases to non parties by the defendants’ counsel, in the process of further discovery, was not necessary to obtain non party discovery and therefore not “necessary” under s. 33.1(1)(j) and accordingly not permitted under sections 32 and 33.
[40] If disclosure was not “necessary” under s. 33.1 (1 )(j), a point I need not decide, then the plaintiffs have whatever remedies, if any, are available to them under FIPA, which may impose on the defendants in the case before the court a higher obligation to limit disclosure of the fruits of discovery to non parties than the implied undertaking as to confidentiality imposes on litigants generally.

[41] The effect of the plaintiffs’ submission is to invite the court to expand the scope of the implied undertaking to comprehend the policy as stated in s. 8.3.2 of the Manual.

[42] I decline to do so for the following reasons.

[43] The implied undertaking applies to all litigants, not just those insured and represented by ICBC. It is not self-evident that the policy adopted by a public body, ICBC, in response to FIPA should determine or inform the common law as developed by the courts in respect of the scope of the implied undertaking.

[44] It is a matter of judgment to be exercised by counsel what information obtained by parties through the litigation discovery process needs to be disclosed to non parties in furtherance of the litigation in which that information has been obtained.

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