Deemed undertaking rule only applied to proceedings other than one in which evidence obtained

DISCOVERY

Deemed undertaking rule only applied to proceedings other than one in which evidence obtained

Settlement of several class actions resulted in Indian Residential Schools Settlement Agreement (“IRSSA”). Plaintiffs were claimants under Independent Assessment Process (“IAP”), established pursuant to IRSSA. Truth and Reconciliation Commission of Canada (“TRCC”), constituted under IRSSA, brought request for direction requiring defendant government of Canada to produce records of 1992 to 1996 Ontario Provincial Police (“OPP”) investigation of assaults and other crimes against students at particular residential school. Request granted. Court had jurisdiction to order Canada to honour its disclosure and production obligations under IRSSA. Jurisdiction derived from court’s power over administration of class action settlements; plenary jurisdiction under s. 12 of Class Proceedings Act, 1992 (Ont.); and IRSSA, which included jurisdiction to enforce court’s own approval and implementation orders. OPP documents in Canada’s possession should be produced to TRCC as they were clearly relevant to its mandate. Deemed undertaking in Rule 30.1 of Rules of Civil Procedure (Ont.), did not preclude production. Deemed undertaking rule only applied to proceedings other than proceeding in which evidence was obtained. Proceedings that culminated in IRSSA included or were same as proceedings associated with order for production of OPP records to Canada. Purposes of plaintiffs in actions in which OPP documents were obtained were overtaken by purposes of their participating in IRSSA as IAP claimants.
Fontaine v. Canada (Attorney General) (Jan. 14, 2014, Ont. S.C.J., Perell J., File No. 00-CV-129059) 237 A.C.W.S. (3d) 353.