July 3, 2015
Chandra v CBC 2015 ONSC 3945
During the course of this defamation trial, in which the CBC and its journalists were defendants, an issue arose concerning the admissibility of written interrogatories delivered in an unrelated civil proceeding in the Supreme Court of Newfoundland and Labrador between the plaintiff in this action, and a witness in this trial.
In the unrelated civil proceeding Dr. Chandra, the plaintiff in this defamation action, sued a witness, Marilyn Harvey, and her employer, Health Care Corporation, for allegedly removing data and other records relating to a research study conducted by Dr. Chandra. The Newfoundland action was eventually discontinued or dismissed.
The documentary that was the subject of this defamation action contained excerpts from an interview with Marilyn Harvey in her role as the “whistleblower” who was associated with a complaint made to Dr. Chandra’s employer, Memorial University, regarding the reliability of Dr. Chandra’s research results in several published studies.
The CBC defendants wished to introduce the written interrogatories from the Newfoundland action to show that Dr. Chandra’s claim against Ms. Harvey were based on a false premise.
Dr. Chandra, the plaintiff in this case, argued that the CBC journalists were bound by the implied undertaking rule which states that where a party to litigation obtains documents from an opposing party through the court-sanctioned compulsory process of documentary production and examination for discovery, the receiving party impliedly undertakes to the court not to use the information for a purpose outside of or collateral to the litigation in which it was produced without leave of the court or consent of the opposing party.
Justice Mew finds that the parties seeking to use the documents (the CBC) are not bound by the undertaking in the earlier court case and that the interrogatory documents are admissible.