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Deemed Undertaking Rule

Posted on November 1, 2017 | Posted in Civil Litigation, Five Liners

CS v. NS 2017 2017 Ont Div Ct.

Rule 30.1.01(1) of the Rules of Civil Procedure states that all parties and their lawyers are deemed to undertake not to use evidence (documents or information) obtained in discovery for any purposes other than the proceedings in which they are obtained. The theory is that the law forces disclosure so that the disclosing individual should at least retain a modicum of privacy over the information. There are exceptions to the Rule. It does not prohibit the use of evidence filed with the court or given at a hearing; the use of evidence to impeach the testimony of a witness in another hearing; or the use of the evidence in a subsequent action. In this case, the counsel for the defendant in a civil action gave the discovery information to counsel for the defendant in the corresponding criminal proceeding for impeachment purposes – without notice to the plaintiff and without seeking directions from the court. The civil motions judge held that this was improper and that the court had to be involved any time an exception was being relied upon.

The appeal of this decision attracted a number of intervenors. The Divisional Court allowed the appeal noting that the Rule provided a prohibition regarding use, but with exceptions. “There is nothing in the Rule that establishes any requirement that a party must seek the approval of the court before (the party) relies on one of the exceptions. If there had been an intention to require such approval, the Rule could have so provided.”


Jonathan Speigel


Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.



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