The Applicant, Canadian Imperial Bank of Commerce (“CIBC”), brought an Application against the Respondent, Dale McMullen, under Rule 5.33, in a long-standing complex dispute between the parties. Mr. McMullen made a fiat request seeking permission to bring an Application to add CIBC, CIBC Trust Corporation, and CIBC World Markets Inc. (collectively the “CIBC Parties”) as well as the CIBC Parties’ lawyers Blake, Cassels & Graydon LLP as third parties and defendants by counterclaim in the within Action.

The Application noted, among other things, that Mr. McMullen’s materials for his Fiat request, which had been provided to Associate Chief Justice Rooke as well as the CIBC Parties contained information in breach of the “implied undertaking” against use codified in Rule 5.33.

CIBC argued that Mr. McMullen used materials from CIBC Trust’s production in Action 0601-13061 (“Action 0601”) and information from Questioning in that Action (the “Confidential Documents”) without having obtained the necessary Consent or Court approval to do so. Mr. McMullen was not a party to Action 0601. CIBC stated that the only way Mr. McMullen could have accessed the Confidential Documents was through the Questioning process, as both were marked as exhibits, and such Confidential Documents are impressed with confidentiality and protected from disclosure and use by Rule 5.33. Mr. McMullen had made no Application for permission to use the Confidential Documents.

Mr. McMullen argued that another Defendant in Action 0601, Ms. Lili Kostic, had used the Confidential Documents. Justice Graesser rejected the argument noting that Ms. Kostic is allowed to use the Confidential Documents to defend herself in that Action. However, Ms. Kostic’s use of the Confidential Documents, whether lawful or unlawful, does not give anyone else the ability to use protected materials in their litigation.

Justice Graesser concluded that on the balance of probabilities, Mr. McMullen’s use of the information contained in the Confidential Documents was a breach of Rule 5.33, and such information and the Confidential Documents have no place in this litigation.