jeffrey j

5.33: Confidentiality and use of information
5.6: Form and contents of affidavit of records

Case Summary

The Applicants, the Minister of Environmental Sustainable Development and the Ministry of Health (collectively the “Regulators”) acquired records during an investigation of possible regulatory offences. The Regulators took the position that they were required to produce all these records unless privileged. The Respondents, GasPlus Inc. and Handel Transport (Northern) Ltd., argued that the common law implied undertaking rule applied to the records in the Regulators’ possession, restricting their disclosure for any purpose other than that for which they were acquired.

Jeffrey J. noted, and the parties agreed, that Rule 5.33 did not apply to the records in dispute. Rule 5.33 imposes an undertaking on records exchanged in the course of civil proceedings. The parties acknowledged that none of the records in issue were so obtained.

After reviewing authorities related to implied undertakings in other contexts, Justice Jeffrey held that there was no rule of law which would restrict the requirements to produce the relevant and material records which were the subject matter of the Application. Accordingly, the Court ordered production of the records in question.

View CanLII Details