This is an Appeal of the Decision of the Chambers Judge declining to hold the Respondents and their lawyer in Civil Contempt for allegedly breaching the “implied undertaking of confidentiality” outlined in Rule 5.33. The Applicant contended that the breach occurred when the Respondents used an email disclosed during discovery in a previous Action (the “First Action”), as evidence in the current Action. Additionally, the Applicant claimed the Chambers Judge erred in finding that the Undertaking was not applicable and that the Respondents could unilaterally waive confidentiality by filing the email in Court. The Respondents argued that no breach occurred since the email became part of the public record when it was filed in the First Action, and that their conduct did not constitute Contempt of Court.

The Court cited Rule 5.33, which codifies the common law principle that information obtained through discovery cannot be used for purposes beyond the scope of the Action. Citing the Decision in Lac d’Amiante du Québec Ltée v 2858 Québec Inc, 2001 SCC 51, the Court noted that confidentiality does not extend to information that is publicly accessible, including filed Affidavits and cross-examinations. Further, the Court concluded that confidentiality concerns could be addressed through alternative measures, such as a restricted Court Access Order under Rule 6.28 or 6.36.

The Court rejected the Applicants assertion that the public record exception only applies when records are produced at Trial, or attached to an Affidavit filed by the party who disclosed them in the litigation. The Court determined that the implied undertaking of confidentially does not apply to documents that are properly entered into the public record, including those filed in Chambers Applications. Additionally, the Court disagreed with the Applicants assertion that the public record exception is limited to records produced under Part 6 of the Rules, noting that Rules 5.32 and 5.33 frame the undertaking as applicable to Division 1 of Part 5. Thus, the Court affirmed that the public record exception was valid, pursuant to Rule 5.33(1)(c).

Ultimately, the Court concluded that no breach of the Undertaking occurred, and the Chambers Judge was correct in finding no basis for civil contempt. In the result, the Court dismissed the Appeal.

The Court considered the proper Costs to be awarded to the Respondent. It stated that, pursuant to Rule 14.88(1), the successful party to an Appeal is entitled to Costs, but where an Appeal reflects a pattern of excessive litigation, enhanced Costs may be warranted. The Court found the Appeal did not respect the foundational principles found in Part 1 of the Rules and, as a result, determined that enhanced Costs of $5,000 were appropriate in the circumstances.