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DISCOVERY - Examination for discovery - Undertakings - Deemed or implied - Production and inspection of documents - Evidence in other proceedings

Friday, October 20, 2017 @ 8:28 AM  


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Appeal by NS of a decision that dismissed his motion for a declaration that he was not prohibited from using discovery evidence to impeach the evidence of a witness in a related criminal proceeding. NS asserted Rule 30.1 of the Rules of Civil Procedure did not prohibit him from making such use of information and documents obtained through discovery in the current civil action. NS argued the use of discovery evidence in the criminal trial was available according to the exception set out in Rule 30.1.01(6), which allowed such use for impeachment. The respondent SC claimed NS had twice assaulted her, which led to criminal proceedings in 2014 in Waterloo and Toronto. The motion judge determined pre-authorization from the court was required for use of discovery evidence under the impeachment exception set out in Rule 30.1.01(6), due to the oversight role of the court in regard to compliance with the undertaking. The issue for determination on appeal was whether a party or counsel needed to seek directions from the court prior to using evidence under one of the exceptions set out in Rule 30.1. The respondent submitted that a plain reading of the impeachment exception, by which a party could automatically use discovery material for that purpose, would be detrimental to plaintiffs/complainants in the sexual assault context and would allow unlimited distribution of the discovery material to third parties.

HELD:  Appeal allowed. The proper interpretation of Rule 30.1 was at issue and the standard of review of correctness applied. The common law deemed undertaking rule prevented the use of discovery documents or evidence obtained from the opposite party for any purpose other than the conduct of the litigation in which the material was produced. The common law rule was codified in Rule 30.1, which also provided for certain exceptions to that prohibition, including impeachment. On a plain reading of Rule 30.1, the only exception that required court pre-authorization was the residual exception that allowed the court to make any other exception as required by the interests of justice. The court did have an oversight role with respect to the deemed undertaking, but oversight did not require pre-clearance. The purpose of the Rules of Civil Procedure was to provide guidance as to the conduct of civil proceedings to avoid having to engage the court in that process. The motion judge erred by putting in place a procedure requiring pre-authorization for the impeachment exception. Rule 30.1 did not authorize use by persons other than parties and lawyers and a concern of widespread dissemination to, and use by, third parties did not arise on a fair reading. There was no basis in the language of Rule 30.1 for an approach applicable only to discovery materials in cases involving allegations of sexual assault. The rule affected all civil proceedings, not just proceedings where sexual assault was the foundation for the claim.

S.C. v. N.S., [2017] O.J. No. 4846, Ontario Superior Court of Justice - Divisional Court, F.P. Kiteley, I.V.B. Nordheimer and D.L. Corbett JJ., September 20, 2017. TLD-October162017009