The Defendant applied for a Declaration that the Plaintiff had breached Rule 5.33 by using transcripts of the Questioning of the Defendant in another Action. The Plaintiff cross-applied for after-the-fact permission to use the Questioning transcript in another Action.

The Plaintiff was engaged in two separate ongoing Actions: (1) the present Action, for divorce and division of matrimonial property; and (2) an Action in Unjust Enrichment against the Defendant’s adult son.

The Plaintiff filed portions of the transcript from Questioning of the Defendant in this Action in the Unjust Enrichment Action.

Justice Burrows turned to a discussion of Rule 5.33, which codifies the implied undertaking of confidentiality in respect of information obtained through Questioning. His Lordship stated that Rule 5.33 mitigates the imposition on the party required to submit to Cross-Examination before Trial by requiring that the evidence given on Questioning be kept confidential except for the uses that the party who did the Questioning is permitted to make of it at Trial.

Justice Burrows held that, while the Plaintiff’s conduct was clearly a breach of Rule 5.33, it was only a technical breach and was done by a self-represented litigant who may not appreciate the operation of the Rule.

His Lordship also considered the Plaintiff’s argument that the Defendant in this Action was not someone who could be questioned in the Unjust Enrichment Action as specified in Rules 5.17 (which identifies who can be questioned), 5.18 (which allows Questioning of a person who has provided services for a corporation), and 5.37 (which discusses pre-Trial Questioning of experts). The Court patently disagreed with this argument and stated that the Defendant could be subject to Questioning pursuant to Rule 6.8. This rule allows a person to be questioned under oath as a witness for the purpose of obtaining a transcript of that person’s evidence for use at the hearing of the Application.

In the result, the Court held that since the Plaintiff’s breach of Rule 5.33 was merely technical, no consequences should flow from it. The Court disposed of both Applications by ordering that the Plaintiff to not make use of the transcripts from this Action in any other Action unless she complies with the requirements of Rule 5.33.