How Your Information is Protected in Litigation in Saskatchewan: The Implied Undertaking Rule

No one likes having their private information dragged into the open. So when you are involved in a lawsuit, the discovery process—where each party shares information that is relevant to the case—can feel intrusive. Your personal documents, emails, and sometimes sensitive commercial details are laid bare for scrutiny.

But there is good news: a safeguard known as the implied undertaking rule protects your privacy from broader disclosure.

This rule ensures that any information disclosed during discovery stays within the courtroom walls—well, almost.

What is the Implied Undertaking Rule?

In simple terms, the implied undertaking rule is a privacy shield in civil litigation. It says that any documents, emails, data, or answers to questions that you provide during the discovery process can only be used for that specific lawsuit.

So, if you are in a legal battle, the other side cannot use your disclosed information for something else—like a different lawsuit, a news article, or a post on social media. This rule gives peace of mind that what happens in litigation, stays in litigation.

Why Does This Rule Exist?

During discovery, both sides are required to hand over all relevant information. The process can feel invasive, especially when it involves your private details. To counter this, the law strikes a balance between the need to get to the truth, and your need for privacy. The rule encourages litigants to comply with their obligations to disclose all relevant documents, because they know that once they disclose that information, however sensitive, it generally cannot be used for any other purpose.

If this protection were not there, people might be less willing to share what they are required to during discovery. No one wants their private life brought up in a completely different case down the road, or as fodder for headlines and newsfeeds. But if people hold back in discovery—or worse, if they do not tell the truth—the administration of justice would risk losing its truth-seeking function. Without the implied undertaking rule, it would be a lose-lose situation.

But What About Exceptions?

Of course, no rule is set in stone. There are some exceptions to the implied undertaking rule, and they show how the court tries to balance privacy with other important public interests.

Here are some situations where the court might allow the use of your information outside of the current case:

1. Public Safety Concerns: If the information reveals a serious threat to public safety, the court could decide that it is too important to stay confidential. For example, if a person reveals through the discovery process that he or she is planning to cause serious bodily harm to someone else, this information might need to be disclosed to protect that other person.
2. Contradictory Testimony: If a person is giving conflicting statements in different cases, courts may allow the statements from one case to be used in the other. The goal here is to ensure fairness—no one should be able to get away with telling two different stories just because what they say is supposed to be kept secret.
3. Related Cases Involving the Same Parties: If two separate lawsuits involve the same parties and issues, the court might allow information from one case to carry over to the other. It would waste both your time and the court’s time for everyone to have to pretend they do not already know information they learned in the related case.
4. Public Information at Trial: Once your information is made public at trial, it is usually fair game. Trials are public, so any details introduced during the trial process are no longer confidential.
5. Legislative Overrides: Sometimes, the law specifically allows for information to be shared outside the confines of a single lawsuit. For example, certain statutes might require information that is discovered in a lawsuit to be carried over to a regulatory investigation covering the same subject-matter. Regulated professions and industries are areas where the protection of the public is the most important goal—even more important than protecting the privacy of the individuals or companies whose information is involved.

The Court’s Role: Keeping It Fair

The court acts as a referee when the implied undertaking rule comes into play. It decides when it is appropriate to lift the implied undertaking and when it is not. After all, the “undertaking” in this rule is essentially a promise made to the court to keep disclosed information private.

The court’s role is to make sure the process is fair, and that the rule is not used as a shield for wrongdoing. If there is a legitimate reason why information from one case is needed in another, the court can allow it. However, without a compelling reason to breach the party’s trust that their information would remain private, the court will enforce the rule.

What About in Saskatchewan?

The implied undertaking rule is an important tradition with a long history in the common law. This means that courts throughout Canada will enforce it, in one way or another, even without a specific statute from the legislature telling it to do so.

In Saskatchewan, the “implied” undertaking has been expressly set out in our King’s Bench Rules. Rule 5-4 spells it out: information shared during discovery is confidential unless the court orders otherwise, the parties agree to share it, or in situations where the law says it has to be disclosed. In other words, unless a party can prove that one of those exceptions (discussed above) apply, the King’s Bench Rules say that it must remain confidential.

Cases in Saskatchewan have enforced our version of the implied undertaking rule too. For example, in Laxton Holdings Ltd. v. Madill, [1987] 3 W.W.R. 570 (Sask. C.A.), the court confirmed that transcripts made during discovery are protected by this rule, even when other legal safeguards like the Charter of Rights and Freedoms offer additional protection.

On the other hand, in Sterling v. Sullivan, 2003 SKQB 359, 231 DLR (4th) 344, the parties already knew the confidential information from another lawsuit that involved the same parties, so the Court said that it would be futile to pretend they did not already know it. The Court emphasized Saskatchewan’s “common sense” approach to this issue.

What Does This Mean for You?

If you are considering starting a civil claim but are worried about your private information becoming public, the implied undertaking rule can offer reasonable peace of mind. The information you provide during discovery is largely protected, and the opposing party can not use it for anything else unless a judge says so—and even then, only under very specific conditions. You can feel more confident sharing what you need to, without worrying that it is going to show up on Facebook later that day.

While there are exceptions, they are rare. Courts take privacy seriously and will only lift the implied undertaking when there is a compelling reason.

McDougall Gauley LLP has extensive experience acting in civil litigation matters. To learn more, contact a member of our Litigation, Dispute Resolution & Appeals team.