During the case management of a class proceeding, the Plaintiff sought leave under Rules 5.33 and 6.11(1)(f) to introduce transcripts and records from other lawsuits on two Applications in the class action: an Advance Costs Application and, eventually, the Certification Application. The leave application was dismissed.

Rule 5.32 codifies the common law implied undertaking of confidentiality. Relief from the implied undertaking can be obtained under Rule 5.33 with the parties’ consent or by court order. The Court deciding an application can consider evidence taken in another action if it gives permission under Rule 6.11(f).

The principles from the Supreme Court of Canada’s decision in Juman v Doucette, 2008 SCC 8 guide the Court on interpreting Rules 5.33 and 6.11(f). Juman explains that the implied undertaking strikes a balance between an individual’s privacy and the public’s interest in the efficient conduct of litigation. Accordingly, if a party wants to lift the implied undertaking, it must demonstrate that a greater public interest exists that should displace the principles the undertaking is designed to protect - namely, privacy and efficient litigation. This will only be achieved in exceptional circumstances, such as where the deponent has given contradictory testimony about the same matters in sequential or different proceedings.

Justice Graesser referred to his own decision in PL v Alberta, 2012 ABQB 309 where he canvased  the case law and held that on an application to lift the implied undertaking, three elements must be met: (1) the party seeking to lift must have cogent and persuasive reasons; (2) the records sought to be introduced must be  relevant and material to the application or action; and (3) the Court must be satisfied that the public interest in seeing justice done in that particular case outweighs the privacy interest of the litigants in the other action and the integrity of the discovery process as a whole.

Justice Graesser looked at the issues in the class proceeding and held that the records sought to be introduced were a distraction and fishing expedition. They were not relevant or material to the causes of action advanced. Further, the records failed the public importance consideration because they did not speak to the public Defendants’ legal duties and whether they were met.

Lastly, Justice Graesser commented that Rule 6.11(f) was of no help to the Plaintiff because it deals with evidence only. Arguments and submissions to the Court in other proceedings are of no evidentiary value.