Co-Author, "What Happens in Discovery (Might) Stay in Discovery", Tax Litigation Journal, vol.16, no.1, October 2008, p.975
Date:
October 30 2008
The discovery process is a necessary step in litigation. If properly conducted, discovery serves to prevent surprise, to facilitate settlement, and to narrow the issues in dispute. Yet, discovery is an invasive process. As broad as the scope of discovery might be, the information obtained in the discovery process is subject to the common law “implied undertaking” rule. The Supreme Court of Canada in Juman v. Doucette reiterated the importance of the implied undertaking rule.
In that case, the Court held that where information gathered in discovery is improperly used in another proceeding, a court can order a stay or dismissal of proceedings, strike a defence or make a contempt of court order. Although the Tax Court of Canada Rules do not codify an implied undertaking rule, case law has established that the implied undertaking rule is available at common law.
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