The Defendant, Danica Prpick (“Ms. Prpick”), sent a letter to the RCMP titled “Organized Crime in Redcliff Alberta” that alleged that public officials and members of the media were involved in corruption and criminal conduct in the Town of Redcliff’s administration. Ms. Prpick also sent an email to a lending officer at the Bank of Montreal (“BMO”) alleging that one of the Plaintiffs, Shanon Simon, had engaged in unethical and illegal conduct that damaged Ms. Prpick (the “BMO Email”). The BMO Email came to light when it was produced in a separate Action, which was subsequently joined with the within Action for procedural purposes. The three Plaintiffs were all closely associated with Redcliff in both elected political and public service staff positions; they sued Ms. Prpick for defamation.

Ms. Prpick objected to the admission of the BMO Email into evidence on the basis that its use would breach the implied undertaking rule. The Plaintiffs argued that the implied undertaking rule is not absolute and that the Court may grant dispensation from it where appropriate. Justice Devlin noted that whether the BMO Emailed can properly be used as evidence begins with Rule 5.33, which codifies the common law implied undertaking rule. Further, Rule 5.33 places explicit statutory limits on the collateral use of otherwise private materials produced involuntarily through the civil discovery process. Justice Devlin held that the use of documents produced in one lawsuit to advance another is prima facie an infringement of Rule 5.33 and requires express permission of the Court. The party seeking to use the protected discovery documents bears a “heavy burden” of satisfying the Court that a collateral use should be allowed.

Justice Devlin noted that the factors that must be considered in determining whether to grant relief from an implied undertaking, which equally apply to an inquiry under Rule 5.33(1)(a), were summarized in Iozzo v Weir, 2004 ABQB 359 at para 9 [“Iozzo”]. Ultimately, the analysis turns on the balance between the mutual prejudices at stake and the impact on the administration of justice. The Court declined to follow the ruling in Ochitwa v Bombino, 1997 CanLII 14899 (AB LB) [“Ochitwa”], that “the public interest favours disclosure as the Defendants, if they have defamed the Plaintiff should not be permitted to hide their defamation behind the protection of the implied undertaking rule.” Justice Devlin held that the Ochitwa decision “erases the rule” and “[p]reventing otherwise useful but confidential information from being used or disseminated is the express purpose of r. 5.33.” The fact that this may forestall a party from pursuing an otherwise valid claim is a contemplated outcome of the Rule. Rather, the proper approach under Rule 5.33(1)(a) is to balance the interests that come into competition when an exemption from the Rule is sought. Ultimately, after considering the Iozzo factors, Devlin J. held that allowing an exception to Rule 5.33 would be contrary to the proper administration of justice and declined to admit the BMO Email.