A decision released yesterday by the Ontario Superior Court of Justice’s Divisional Court has overturned a Superior Court ruling that limited when civil lawyers can share compelled medical records and other personal information with defence counsel in the same case.
In S.C. v. N.S., 2017, ONSC 5566, a young woman had sued her former boyfriend for damages in an alleged sexual assault case, and criminal charges had also been brought against him. Although the civil action was started later, the criminal and civil proceedings ended up running concurrently. In compliance with the plaintiff’s documentary discovery obligations under the Rules of Civil Procedure, very private records, including medical, were produced to her former boyfriend.
Without the knowledge of the plaintiff or her counsel, the defendant and accused in the case had shared the plaintiff’s documents produced in the civil case with his criminal defence counsel, who then relied on these records at trial. Following an objection to this, the criminal trial was adjourned. The defendant’s civil defence counsel subsequently brought a motion seeking an after-the-fact declaration that sharing the plaintiff’s production for the civil case for purposes of the criminal defence was proper.
Justice Wendy Matheson of the Ontario Superior Court of Justice disagreed, finding that the deemed undertaking rule in the Rules of Civil Procedure, under which information obtained from one proceeding cannot be used in another proceeding, had been violated. Exceptions to the deemed undertaking rule include the use of such information to impeach the testimony of a witness (in this case, the plaintiff/complainant), but such use is not automatic, Matheson found. Finding such an exception must be subject to the judicial oversight of the court in order to preserve “reasonable expectation[s] of privacy” of the plaintiff/complainant, Matheson ruled.
Writing for the Divisional Court, Justice Ian Nordheimer found that “there was nothing improper with the appellant sharing the Discovery Evidence with any of his legal advisers for the purpose of obtaining that advice and assistance.” While he agreed that “the court has an oversight role with respect to the deemed undertaking,” he wrote that “oversight does not carry with it the need for pre-clearance” by the court.
“Once the Discovery Evidence was delivered by the respondent to the appellant [the defendant/accused], he was entitled to share it with any of his legal advisors,” Nordheimer concluded. “The motion judge’s conclusion . . . that giving a copy of the discovery material to criminal counsel constituted a ‘use’ contrary to r. 30.1.01(3) is in error, in my view, because it interferes with the fundamental right of a person to obtain legal advice — a right that is constitutionally guaranteed . . . ”
The admissibility of evidence should be decided by the trial judge, he wrote. “Trial judges always have a gatekeeping role regarding evidence that is proffered at trial.”
This case appears to be the first time that Canadian courts have “grappled with the interplay of the deemed undertaking rule” in the Rules of Civil Procedure and the criminal trial process when there are overlapping facts, Jonathan Lisus of Lax O’Sullivan Lisus Gottlieb LLP in Toronto told Legal Feeds. Lisus was lead counsel for an intervener, the Criminal Lawyers’ Association, in the case.
“The Criminal Lawyers’ Association had a number of concerns, but chief amongst them was ensuring that important decisions about credibility and impeachment were made in the proper venue, and the CLA’S view was that the proper venue . . . in criminal trials is the criminal court.
“I think that’s really at the heart of the decision,” Lisus said. “The Divisional Court was concerned that the reading in of a procedure to the civil rules would be disruptive to the criminal trial process and complicate it, and that the core issue of credibility for the purposes of the criminal trial should be determined by the criminal trial judge.”
Iain MacKinnon of Linden & Associates in Toronto acted as counsel for the plaintiff/respondent in the case.
“Ultimately, the key question that the court had to answer was what guidance or directions, if any, does a party, or his or her lawyer, have to seek from the court before using evidence of information obtained in the discovery process in a civil action?
“We argued, in the context of these facts . . . that those type of documents shouldn’t just be handed over to somebody outside the civil proceeding,” MacKinnon says, owing to the very personal nature of the material and the breach of privacy entailed by that sharing.
The Divisional Court said “use” doesn’t happen until the material is used for impeachment in a criminal trial, he says. “We said the breach occurs when documents are shared outside of the civil action.” In his client’s cases, “hundreds of pages of documents that included very personal, private records” were shared, which on the basis of the Divisional Court decision, “could be disclosed to anybody, any third party, if it’s disclosed for the use of impeaching a witness,” MacKinnon says. “That’s what we took issue with.”
Grounds for appeal of the Divisional Court decision will be considered, he says.