IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110414

Docket: 080614

Registry:
Vancouver

Between:

Nancy Cochrane

Plaintiff

And

Robin Heir and
Parminder Heir

Defendants

Before:
The Honourable Mr. Justice Harris

Reasons for Judgment

[1]            
Counsel for the defendants applies to be released from the implied
undertaking as to confidentiality for documents originating in a previous
action involving the plaintiff. The documents in question are in the possession
of counsel for the defendants because he was counsel in the previous action
involving the same plaintiff.

[2]            
The documents in issue are the transcripts of examination for discovery
evidence given by the plaintiff in the previous action. That action was settled
and did not proceed to trial. I take it that no parts of the transcripts of the
examination for discovery of the plaintiff ever became part of the court file. Other
documents include letters a court document that appears to have been delivered
and served but not filed in the previous action.

[3]            
Counsel for the plaintiff opposes relieving defendants’ counsel from the
implied undertaking.

[4]            
This action involves injuries alleged to have been suffered by the
plaintiff in a motor vehicle accident. The injuries are similar to injuries
that formed the subject matter of the previous litigation. Examinations for
discovery in this action have canvassed subject matter the same as or similar
to matters canvassed in the previous action. I am satisfied that the documents
covered by the request of counsel to be relieved from the implied undertaking,
including the discovery transcripts, are material to this action. Moreover, the
documents other than the transcripts of the examination for discovery were
produced by the plaintiff in the previous action.

[5]            
In my view, there should be no need to relieve counsel for the
defendants of his obligation under the implied undertaking. The documents are
either in the possession of the plaintiff or they were in her control or possession.
The plaintiff has an independent obligation to list and produce them further to
her obligations under Rule 7-1(1)(a)(i) of the Civil Rules. The plaintiff
cannot shield herself from her obligation to list and produce relevant
documents by invoking the implied undertaking against opposing counsel who came
into possession of those documents in the previous litigation: see Wilson v.
McCoy, 2006 BCSC 1011.

[6]            
Given that the documents in issue have not yet been listed and produced
by the plaintiff, I am prepared to relieve counsel for the defendants of the
implied undertaking in respect of the transcripts of the examinations for
discovery conducted in the previous action and the documents in issue. The
implied undertaking exists to protect privacy rights and to facilitate the free
flow of information in litigation by providing an assurance that information
compelled to be provided in discovery is not used for collateral purposes.

[7]            
In Juman v. Doucette, [2008] 1 S.C.R. 1011, the following is said
that governs the exercise of my discretion to relieve a party or counsel of the
obligations imposed by the implied undertaking:

[35]      The case law provides
some guidance to the exercise of the court’s discretion. For example, where
discovery material in one action is sought to be used in another action with
the same or similar parties and the same or similar issues, the prejudice to
the examinee is virtually non-existent and leave will generally be granted. See
Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R. (2d) 260
(H.C.J.), at pp. 265-66; Crest Homes, at p. 1083; Miller
(Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R.
323 (C.A.); Harris v. Sweet, [2005] B.C.J. No. 1520 (QL), 2005 BCSC
998; Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998),
27 C.P.C. (4th) 252 (B.C.S.C.).

[8]            
The application of counsel for the defendants is granted.

“Harris
J.”