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CCCA_V2No2_Col-Litigat-FIN.qxd:CCCA_V1No2_Col-Litigat-V1.qxd 4/30/08 4:46 PM Page 50 Litigation Comfort for Corporate Counsel The Supreme Court of Canada’s robust approach to the implied undertaking rule. n Juman v. Doucette, 2008 SCC 8, the The Attorney General argued that the criminal conduct exception would under- ISupreme Court of Canada has endorsed rule should not even exist, but that if it did mine criminal law principles, such as the a robust approach to the implied under- exist it ought not to preclude bona fide dis- right to silence and the right against self- taking rule — decisively rejecting an closures of criminal activity to the police. incrimination, and that the court, not a argument that the rule does not exist at The allegations of child abuse lent signifi- private litigant, should decide when dis- common law, and holding that the rule cant force to this alternative submission. covery evidence should be disclosed to the applies to preclude disclosure of discovery Yet the court decisively rejected the police, since the litigant’s viewpoint will evidence even if it shows criminal con- Attorney General’s arguments, reaffirming naturally be biased and since it would be duct. The case should give considerable the existence of the implied undertaking “quite wrong” for the police to be able to comfort to corporate counsel, especially rule at common law,rejecting an exception use compelled civil testimony to bypass those whose corporations are facing both for criminal conduct, enunciating a strin- criminal law protections. civil and criminal allegations. gent test for relief from the rule, and deny- The only concession to the police was a The implied undertaking rule (known in ing relief on the facts of the case. confirmation that discovery transcripts can some provinces as the“deemed undertaking The court gave two reasons to justify its be seized under a subpoena duces tecum or a rule”) provides that evidence obtained on affirmation of the existence of the rule at search warrant issued under the Criminal discovery, whether documentary or oral, common law: 1) that the invasion of priva- Code if grounds exist to obtain either one. may be used only for the particular litigation cy that occurs as a result of discovery,which This is because the police,as non-parties to from which it was obtained, unless the is compulsory,should be limited to the level the civil action, are not bound by the opposing party or the court allows its collat- of disclosure necessary for the civil action; implied undertaking. The question of the eral use.Codified in the rules of civil proce- and 2) that complete and candid discovery admissibility of such evidence in criminal dure of Ontario, Manitoba and Prince should be encouraged and discovery evi- proceedings was left open. Edward Island,it has also been recognized as dence protected. In all Canadian jurisdictions, information part of the law of Quebec in Lac d’Amiante In a line that will resonate with many disclosed on discovery now has broad pro- du Québec Ltée v. 2858-0702 Québec Inc. corporate counsel, Justice Binnie, who tection against use outside the particular case. [2001], 2 S.C.R. 743, and it exists at com- authored the unanimous decision, noted The inherent dangers of ‘litigation by ava- mon law in other provinces. that the protection afforded by the rule “is lanche’ have been recognized. Most impor- In Juman, the rule was tested by chal- of particular interest in an era where docu- tantly, those facing simultaneous criminal lenging facts.While in Ms. Juman’s home- mentary production is of a magnitude (‘lit- and civil allegations now have assurance that based daycare, a 16-month-old child had a igation by avalanche’) as often to preclude evidence compelled to be disclosed in a civil seizure and was later found to have suf- careful pre-screening by the individuals or case will not easily make its way into the fered a brain injury. The child’s parents corporations making production.” hands of police and Crown prosecutors. sued Juman for negligence.She was exam- In considering whether there should be ined for discovery and testified under the relief from the rule for criminal conduct, Geoff R. Hall is a partner in McCarthy protection of the Canada Evidence Act.The the court continued its robust approach, Tétrault’s Litigation Group in its Toronto civil action settled before trial. holding that relief is only available in office.His practice focuses primarily on corpo- Contemporaneously, the Vancouver “exceptional circumstances” where the rate/commercial litigation. Mr. Hall holds an police were investigating Juman for child moving party has met the onus of show- LLB from the University of Toronto Law abuse, and, with the Attorney General of ing that some public interest outweighs School and an LLM from Harvard Law B.C., sought access to Juman’s discovery the interests protected by the rule, namely School. He clerked at the Supreme Court of transcript. She resisted on the basis of the privacy and the efficient conduct of civil Canada and was called to the Ontario bar implied undertaking rule. litigation. The court further held that a in 1993. 50 CCCA Canadian Corporate Counsel Association SUMMER 2008