Confidentiality of Examination for Discoveries

In civil lawsuits in British Columbia, you do not have a right to remain silent.

Each party to a lawsuit is entitled to pre-trial disclosure of documents. Each side may question the other under oath at an examination for discovery before trial. The party asking the questions may read in the questions and answers at trial, or may use them to impeach the other party’s testimony at trial during cross examination.

If a party refusing to answer questions at the examination for discovery, the court may order the party to answer the questions. The court can dismiss the party’s claim, or defence, if the party refuses to answer.

On the other hand, there is in British Columbia an implied undertaking that pre-trial document disclosure and examination for discovery evidence may only be used for the purposes of the proceeding. The party conducting an examination for discovery may not give the examination transcripts to someone else not connected with the suit, except with the permission of the person who was examined. This affords some protection to the privacy of the parties to a civil lawsuit. (But if the evidence is read into the trial record, it becomes public.)

The Supreme Court of Canada has affirmed the implied undertaking of confidentiality in a decision released last week, Juman v. Doucette, 2008 SCC 8.

In Juman, the Vancouver police sought information from the discovery of a childcare worker who had been sued after an infant who had been in the childcare worker’s care had suffered a brain injury. The civil suit brought on behalf of the infant had been settled.

The Supreme Court of Canada held that the parties could not release information from the examination of the child care worker to the police without her consent.

Mr. Justice Binnie described the rationale for the implied undertaking of confidentiality.

[24] In the first place, pre-trial discovery is an invasion of a private right to be left alone with your thoughts and papers, however embarrassing, defamatory or scandalous. At least one side in every lawsuit is a reluctant participant. Yet a proper pre-trial discovery is essential to prevent surprise or “litigation by ambush”, to encourage settlement once the facts are known, and to narrow issues even where settlement proves unachievable. Thus, rule 27(22) of the B.C. Rules of Court compels a litigant to answer all relevant questions posed on an examination for discovery. Failure to do so can result in punishment by way of imprisonment or fine pursuant to rules 56(1), 56(4) and 2(5). In some provinces, the rules of practice provide that individuals who are not even parties can be ordered to submit to examination for discovery on issues relevant to a dispute in which they may have no direct interest. It is not uncommon for plaintiff’s counsel aggressively to “sue everyone in sight” not with any realistic hope of recovery but to “get discovery”. Thus, for the out-of-pocket cost of issuing a statement of claim or other process, the gate is swung open to investigate the private information and perhaps highly confidential documents of the examinee in pursuit of allegations that might in the end be found to be without any merit at all.

[25] The public interest in getting at the truth in a civil action outweighs the examinee’s privacy interest, but the latter is nevertheless entitled to a measure of protection. The answers and documents are compelled by statute solely for the purpose of the civil action and the law thus requires that the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy that purpose and that purpose alone. Although the present case involves the issue of self-incrimination of the appellant, that element is not a necessary requirement for protection. Indeed, the disclosed information need not even satisfy the legal requirements of confidentiality set out in Slavutych v. Baker, [1976] 1 S.C.R. 254. The general idea, metaphorically speaking, is that whatever is disclosed in the discovery room stays in the discovery room unless eventually revealed in the courtroom or disclosed by judicial order.

[26] There is a second rationale supporting the existence of an implied undertaking. A litigant who has some assurance that the documents and answers will not be used for a purpose collateral or ulterior to the proceedings in which they are demanded will be encouraged to provide a more complete and candid discovery. This is of particular interest in an era where documentary production is of a magnitude (“litigation by avalanche”) as often to preclude careful pre-screening by the individuals or corporations making production. See Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1 (C.A.), per Esson J.A. dissenting, at pp. 10-11.

But the privacy protections may not be as strong as they might first appear.

The Court said that there are some exceptions where the public interest may override confidentiality. These include statutory exceptions, public safety concerns, and impeachment of inconsistent testimony in another proceeding.

Mr. Justice Binnie also said that the police could apply for a warrant to obtain discovery evidence (if there are sufficient grounds) or subpoena documents disclosed in the discovery process at a criminal trial.