5.31: Use of transcript and answers to written questions
5.33: Confidentiality and use of information

Case Summary

The Plaintiff commenced an Action against the Defendants for compensation arising from an employment agreement. The Defendants denied the Plaintiff’s claim, stating that the Plaintiff was paid according to an amended agreement. The Plaintiff denied there was an amended agreement. In a separate non-competition Action arising from the same employment arrangement, the Plaintiff admitted to the amended agreement. The Defendants applied to relax the express undertaking in order to allow the transcript from the non-competition Action to be used as evidence to support the compensation Action. Rather than just using the admission to impeach the Plaintiff’s credibility, the Defendants applied to use it as an admission against interest.

Master Schlosser stated that Rule 5.33(1)(c) applies to using evidence from one Action to impugn credibility in another. The applicable Subrule for using evidence from one Action to establish liability or a defence in another is Rule 5.33(1)(a). Master Schlosser considered prior case law, and stated that public policy does not support claims that are inconsistent with sworn testimony in other Proceedings. The admission was relevant and material to the compensation Action, and there did not appear to be any prejudice. The Court held that the Defendant was free to treat the admission as admissions against interest in the compensation Action. The Plaintiff could respond by way of an Affidavit, or by operation of Rule 5.31(3), relying on other parts of the non-competition Action’s transcripts that may explain or quantify the admission.

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