5.33: Confidentiality and use of information
6.8: Questioning witness before hearing

Case Summary

A Judgment Creditor applied for an Order that the Defendant was in contempt of two previous Orders to provide a Financial Report and pay $375.30 in costs. Additionally, the Applicant sought to use the transcripts from an Examination on the Defendant’s Statutory Declaration in other proceedings. Graesser J. found that the implied undertaking of confidentiality under Rule 5.33 did not apply to a Cross-Examination on an Affidavit or Statutory Declaration. Rather, this type of questioning was akin to questioning under Rule 6.8 or “old” Rule 266, and Cross-Examinations on Affidavits are treated as being akin to testimony in Court to which the open Court principle applies. Graesser J. further commented that the new Rules did not change the difference between these types of Questioning. Rule 5.33 and the implied undertaking of confidentiality applied to the Affidavit of Records, records produced, Examinations for Discovery, undertakings on examinations and records produced arising out of the Discovery process. Cross-Examination on an Affidavit or Statutory Declaration is not subject to this implied undertaking. Graesser J. held that the Applicant did not need Court approval or an Order under Rule 5.33 to allow the use of the transcripts in other proceedings.

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