July 9, 2014

One of the best ways for a litigator to learn is to sit in open court watching other litigators suffer through embarrassing court room experiences.  In one of my early days appearing on the Estates List, I had one such experience, and the litigator’s lesson that day centred on the often-misunderstood deemed undertaking rule.

On consent, the parties sought an Order Giving Directions.  The judge carefully read through all of the provisions in the draft order and asked counsel why the judge was being asked to order that the deemed undertaking rule be waived.  From the look of panic/confusion on counsel’s face, it was obvious that he had absolutely no idea why the parties were asking the judge to make this order.  Oddly, responding counsel, who had also consented to the order, did not know either.

Moving counsel, clearly embarrassed, answered truthfully that he really didn’t know what this provision was about; it was simply one of a number of clauses in his firm’s precedent Order Giving Directions.  For any readers who are not litigators, let me just say that telling a judge that he should make an order simply because the clause is contained in your firm precedent would be like telling Gordon Ramsey on television’s “Hell’s Kitchen” that some people like their chicken a bit pink and bloody in the centre.  Let’s just say that this submission did not go over well.  The first thing that I did on returning my office that day was to brush up on the application of the deemed undertaking rule.

The deemed undertaking rule essentially provides that evidence obtained pursuant to a number of specific rules in the Rules of Civil Procedure cannot be used for any purpose other than the legal proceeding in which the evidence was obtained.  There are a number of exceptions to the prohibition on ulterior use, including the important exception that allows evidence from one proceeding to be used to impeach the credibility of a witness in another proceeding.

One curious thing about the deemed undertaking rule is that parties routinely ask for court orders dispensing with it in circumstances in which it would not likely apply in the first place.  The deemed undertaking rule does not apply to evidence given on cross-examination, for example.  It applies only to evidence given pursuant to Rule 30 (documentary discovery), Rule 31 (examination for discovery), Rule 32 (inspection of property), Rule 33 (medical examination) and Rule 35 (discovery by written questions).  In a proceeding commenced by way of application, where evidence is given by way of affidavit and cross-examination, there should not be any need for an order waiving the application of the deemed undertaking rule, as it does not apply in the first place.

Even where the deemed undertaking rule does apply, Rule 31.1.01(8) permits the court to order that it be dispensed with “if satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed the evidence”.

What got me thinking again about the deemed undertaking rule was an interesting endorsement by Justice Greer that I stumbled across earlier this week.  In it, an applicant in a proceeding the Substitute Decisions Actsought to introduce a transcript from another proceeding as evidence of her mother’s incapacity.  Although not entirely clear from the endorsement, Justice Greer found that the transcript was evidence governed by the deemed undertaking rule.  Thus, it could not be used for any purpose other than the original proceeding unless the court ordered otherwise.

Justice Greer reviewed the rationale behind the rule:  If litigants are assured that documents and answers will not be used for collateral or ulterior purposes, they will be encouraged to provide a more complete and candid discovery.  This, the Supreme Court reasoned in Juman v. Doucette, the rule serves a public interest in getting at the truth in civil matters.

In the case before Justice Greer, the impugned transcript had not formed part of any public record.  As such, there was a privacy interest at stake – a previously private transcript would become a publicly available document if Justice Greer allowed the applicant’s motion.  Commenting on whether it would be in the interests of justice to waive the application of the deemed undertaking rule, Justice Greer held:

“In the case before me, [the applicant] is trying to obtain having the Transcript as part of the evidence on her Application, for ulterior purposes.  She is trying to have the Court declare that [her mother] is incapable of managing her property.  Anne has already gone through one civil lawsuit, commenced by her own son, over money.  She now faces a similar lawsuit in new clothing, but for the same purpose.  Her daughter, Randi, now wants to control Anne’s assets…I cannot see that the interests of justice will be in any way served by allowing the Transcript to become a public document.”

In estate litigation, it is not uncommon for cases to start out as applications and be converted to actions.  This endorsement reminded me of the need to be cautious about the possible implications of the deemed undertaking rule when converting an application to an action and to always be mindful when drafting an Order Giving Directions about the uses to which the parties might wish evidence to be used in the future (or not).

Thanks for reading.