T-1583-84
Control Data Canada Ltd. (Plaintiff)
v.
Senstar Corporation (Defendant)
INDEXED AS: CONTROL DATA CANADA LTD. V. SENSTAR CORP.
Trial Division, Giles A.S.P.—Toronto, April 11
and May 6, 1988.
Practice — Discovery — Confidentiality order — Motion
for order permitting release of information to American coun
sel with view to bringing action under American law for triple
damages — Applicability of English case of Harman to dis
covery in Federal Court — Releasing information given on
discovery to found action of penal nature would discourage
disclosure upon discovery and impair administration of justice
— Motion dismissed.
This was a motion for an order permitting disclosure to
United States counsel of information subject to a confidential
ity order and also of information provided on discovery not
subject to the confidentiality order but subject to the implied
undertaking referred to in Home Office v Harman, [1982] 1
All ER 532 (H.L.) or the general obligation mentioned in
Kyuquot Logging Ltd. v. B.C. Forest Prod. Ltd. (1986), 5
B.C.L.R. (2d) 1 (C.A.). The advice of American counsel was
sought regarding the bringing of an action under American law
which, if successful, would result in triple damages being
awarded.
Held, the motion should be dismissed.
The common law rule that a witness could not be required to
give evidence which might incriminate himself extends to the
incrimination of his organization. This privilege was altered by
the Evidence Acts, which require such evidence to be given, but
prevent its use in another case. An implied undertaking or
general obligation found in some of the cases extends the
protection beyond the jurisdiction and applies it without need
for the witness to claim it. Releasing information imparted on
discovery for the purpose of founding an action of a penal
nature would tend to hinder the voluntary provision of informa
tion upon discovery, thus having a deleterious effect on the
administration of justice in this Court.
CASES JUDICIALLY CONSIDERED
APPLIED:
Home Office y Harman, [1982] 1 All ER 532 (H.L.).
CONSIDERED:
Kyuquot Logging Ltd. v. B.C. Forest Prod. Ltd. (1986), 5
B.C.L.R. (2d) 1 (C.A.); Halliburton Co. et al. v. North-
star Drillstem Ltd. et al. (1982), 65 C.P.R. (2d) 122
(F.C.T.D.); Riddick y Thames Board Mills Ltd, [1977]
3 All ER 677 (C.A.); Lac Minerals Ltd. v. New Cinch
Uranium Ltd. (1985), 48 C.P.C. 199 (Ont. H.C.);
(1985), 2 C.P.C. (2d) 76 (Ont. H.C.).
REFERRED TO:
Re Donald and Law Society of British Columbia (1983),
2 D.L.R. (4th) 385 (B.C.C.A.); Johnson v. Law Society
of Alberta (1986), 66 A.R. 345 (Q.B.); Johnstone v. Law
Soc. of B.C. (1987), 15 B.C.L.R. (2d) 1 (C.A.); Charles
v. Royal Bank of Canada et al.; Canadian Imperial Bank
of Commerce et al., Third Parties (1987), 60 O.R. (2d)
537 (Ont. S.C.).
COUNSEL:
Ronald E. Dimock for plaintiff.
G. A. Piasetzki for defendant.
SOLICITORS:
Sim, Hughes, Dimock, Toronto, for the
plaintiff.
Rogers, Bereskin & Parr, Toronto, for the
defendant.
The following are the reasons for order ren
dered in English by
GILES A.S.P.: The defendant has moved for an
order permitting disclosure to United States coun
sel for the plaintiff, of information subject to a
confidentiality order in this case, and also of infor
mation provided on discovery in this case, which is
not subject to the confidentiality order, but would
be subject to the implied undertaking found in
Home Office y Harman, [1982] 1 All ER 532
(H.L.), or the general obligation referred to by
Esson J.A. in his reasons in Kyuquot Logging Ltd.
v. B.C. Forest Prod. Ltd. (1986), 5 B.C.L.R. (2d)
1 (C.A.) (the existence of which obligation was not
found by the other judges in that case).
The motion was argued for the most part, on the
point of the applicability of Harman to discovery
in the Federal Court.
As was pointed out by Anderson J.A., in
Kyuquot, "The absence of litigation in respect of
this issue indicates that misuse of discovery was
not a significant problem". In recent years in
Canadian jurisdictions, the scope of discovery per
mitted has expanded, and that may in part account
for the absence of litigation until recent years in
this Court and then only the decision of Walsh J.
in Halliburton Co. et al. v. Northstar Drillstem
Ltd. et al. (1982), 65 C.P.R. (2d) 122 (F.C.T.D.),
appears to have been reported. In that case, there
was a confidentiality order which extended to
information designated confidential, produced
otherwise than on discovery. While referring to
Riddick y Thames Board Mills Ltd, [1977] 3 All
ER 677 (C.A.), in which Lord Denning, M.R.,
noted the existence of the implied undertaking.
Mr. Justice Walsh did not specifically find an
implied undertaking applicable to information
obtained on discovery. He refused to amend the
confidentiality order with reference to information
produced on discovery, but did amend the order to
permit disclosure of other confidential information
to Alberta solicitors for the purpose of advising
with respect to a prospective action in Alberta, but
not for use as evidence in any such action.
It appears therefore, that the reference of
Addy J. to Riddick may only be dicta. Neverthe
less, in my view, the principle which he notes there
is applicable in this case. In addition, I note that it
would appear from Lac Minerals Ltd. v. New
Cinch Uranium Ltd. (1985), 48 C.P.C. 199 (Ont.
H.C.) and (1985), 2 C.P.C. (2d) 76 (Ont. H.C.)
that the implied undertaking or a variant of it is
part of the Law of Ontario.
In this case, it was stated that the reason for
wishing to disclose information obtained on discov
ery to American counsel was to seek their advice
with regard to bringing an action under American
legislation which, if successful, would result in
triple damages being awarded. An action so
described is penal in nature. Therefore, principles
such as those resulting in section 11 of the Charter
have to be considered.
Again, there is some apparent difference in the
cases as to the extent of protection and whether it
applies in the case of penal as well as criminal
matters. (see Re Donald and Law Society of Brit-
ish Columbia (1983), 2 D.L.R. (4th) 385
(B.C.C.A.); Johnson v. Law Society of Alberta
(1986), 66 A.R. 345 (Q.B.); Johnstone v. Law
Soc. of B.C. (1987), 15 B.C.L.R. (2d) 1 (C.A.);
Charles v. Royal Bank of Canada et al.; Canadian
Imperial Bank of Commerce et al., Third Parties
(1987), 60 O.R. (2d) 537 (Ont. S.C.)).
I therefore go back to the old common law rule
that a witness could not be required to give evi
dence which might incriminate himself. This was
extended in the earliest times to grant protection
against being required to give evidence which
might incriminate his organization. This privilege
of a witness was abridged or altered by the Evi
dence Acts, which require such evidence to be
given, but prevent its use in another case. The
implied undertaking of Harman or the general
obligation of Esson J.A. provide in essence a simi
lar protection to that provided by the Evidence
Acts (which possibly can be relieved against by the
Court) but also has the effect of extending the
protection beyond the jurisdiction and applying the
protection without need for the witness to claim it.
I note that in finding there is an implied under
taking or general obligation, the defendant is in
practice denied the advice of United States counsel
because, as has been pointed out in the English
cases, the client as well as the solicitor is prohib-
ited from making use of the information. However,
the public policy aspect of encouraging voluntary
production of information on discoveries, must
outweigh the interest of the defendant in simplify
ing its consideration of a possible action of a penal
nature in the United States. The absence of the
implied undertaking or general obligation would
discourage the voluntary production of informa
tion on discovery.
It was indicated in Kyuquot, that the implied
undertaking could be relieved against by the
Court. Whether this is indeed the case, I do not
have to decide, as I find this is not an occasion in
which such discretion, if it exists, should be exer
cised. Any exercise of discretion which might
hinder the voluntary provision of information on
discoveries would have a deleterious effect on the
administration of justice in this Court. It is my
view, that releasing confidential information for
the purpose of criminating, that is to say founding,
an action of a penal nature, would tend to hinder
the voluntary provision of information. The motion
will therefore be dismissed.
ORDER:
Motion dismissed.
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