Tale as old as time
Tune as old as song
Bittersweet and strange
Finding you can change
Learning you were wrong… – (Lyrics from Beauty and the Beast)

Many cases have both criminal and civil proceedings. It’s a tale as old as time.  But, in SC v NS, 2017 ONSC 353, a twist arose from the two parallel proceedings. In SC v NS, the plaintiff sued the defendant for sexual assault. And while this lawsuit was underway, there was a parallel criminal proceeding in progress.

As part of the documentary discovery process, the plaintiff provided highly confidential documents to civil defence counsel.  Civil defence counsel then gave these documents to the criminal counsel. While at trial, criminal defence counsel used these documents to cross-examine the plaintiff (complainant).

This caused a storm to erupt in the courtroom. Civil counsel had violated the deemed undertaking rule by giving the documents to criminal counsel. And a motion was brought to address the breach of the deemed undertaking rule.

The deemed undertaking rule is the rule that you cannot use information obtained from one proceeding in another proceeding. There are exceptions to this rule, including the exception of using it to impeach the testimony of a witness. In SC v NS, Justice Matheson wrote:

[4] …Unlike the other exceptions to the deemed undertaking, the impeachment exception raises numerous issues and interests, which vary depending on the specific circumstances. The “automatic” approach advanced by the moving party would allow for the undertaking to be entirely or substantially defeated. It is therefore necessary that parties wishing to proceed under the impeachment exception seek directions of this Court regarding how to proceed in the particular circumstances. Ordinarily, that motion would be on notice to the party whose compelled discovery is proposed to be used…

[5] In this case, the moving party ought to have sought directions from this Court, on notice to the plaintiffs, before using the plaintiffs’ documentary productions in the criminal proceeding. The moving party did not do so and therefore failed to deploy the exception properly, breaching the undertaking.

[6] This is not a determination of whether the documents can be used in the criminal trial. This decision relates only to responsibilities under Rule 30.1.01 of the Rules of Civil Procedure. I am not deciding any issue regarding the admissibility of evidence, scope of cross-examination or any other matter regarding the conduct of the criminal proceedings. Those matters are properly decided by the criminal trial judge…


 [75] I have significant difficulty with the submission that nothing else was required prior to permitting the use of the entirety of a party’s compelled documentary discovery in another proceeding.  On this approach, a party could hand over the entirety of an opposite party’s compelled discovery to a third party on the mere possibility that there may be a chance to impeach sometime in the future.  I say “mere possibility” not as a comment on the facts before me, but because in the absence of judicial oversight that is what could transpire.  This approach would allow for wide sharing of intensely personal information outside the civil proceeding for which it was produced, secretly, without any notice to the person and people whose private information is being passed around.

[89]           In my view, these issues can be addressed on a motion for directions within the context of a specific situation more easily than they can be addressed in the abstract.  And the directions given may differ greatly depending on the circumstances.  This underscores the need to move for directions in individual cases.

Civil counsel was wrong to provide the plaintiff’s confidential records to criminal defence counsel without a court order. I predict that this case will be heard by the Ontario Court of Appeal. The Ontario Court of Appeal will affirm Justice Matheson’s decision. To rule otherwise would be to gut the deemed undertaking rule and to render it meaningless.