Tanner et al. v. Clark et al. Reimer et al. v. Christmas [Indexed as: Tanner v. Clark]
63 O.R. (3d) 508
[2003] O.J. No. 677
Docket No. C38886
Court of Appeal for Ontario
Carthy, Abella and Gillese JJ.A.
February 28, 2003
*Application for leave to appeal to the Supreme Court of Canada dismissed with costs November 6, 2003 (McLachlin C.J.C., Major and Fish JJ.).
Civil procedure -- Discovery -- Production of documents -- Deemed undertaking -- Deemed undertaking rule set out in rule 30.1.01(3) of Rules of Civil Procedure not applying to information or evidence obtained in arbitration proceedings before Financial Services Commission of Ontario -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.1.01(3).
Civil procedure -- Discovery -- Production of documents -- Implied undertaking rule -- Plaintiffs injured in motor vehicle accidents -- Plaintiffs commencing arbitration proceedings with respect to accident benefits and tort action for damages -- Common law implied undertaking rule not operating to protect medical reports obtained in arbitration proceeding from disclosure in tort action.
The plaintiffs were injured in motor vehicle accidents and, in each case, commenced both an arbitration proceeding, before what is now the Financial Services Commission of Ontario with respect to accident benefits, and a civil action for damages. The plaintiffs were compelled to submit to medical examinations at the behest of their accident benefits insurer. Motions by the defendants in the civil actions for an order for production of the medical reports were dismissed on the basis of the implied undertaking rule. The defendants' appeals were allowed. The appeal judge held that rule 30.1.01(3) (the deemed undertaking rule) of the Rules of Civil Procedure did not apply to the accident benefits proceedings. She concluded that the common law implied undertaking rule had no application in the circumstances of these cases, essentially because the principle behind the rule is directed to protecting against use by the recipient of the information, not to protecting the information from all uses. The plaintiffs appealed.
Held, the appeals should be dismissed.
The appeal judge did not err in her reasoning or conclusion with respect to the common law implied undertaking rule. The plaintiffs submitted to medical examinations in the accident benefits proceedings knowing that the information they imparted would not be used by the insurers except in those proceedings, and would not be communicated to others for their use in other proceedings. That had not happened here. The insurers in the tort proceedings were different companies and the information was sought, not from the insurers in the accident benefits proceedings, but from the source of that information, the plaintiffs in the tort actions. To extend the implied undertaking rule in the manner sought by the plaintiffs would wrap a cloak of privilege around evidence given in any administrative tribunal hearing where a related issue arose in other proceedings, and would stand in the way of courts and tribunals having available the best evidence, or all of the evidence, bearing upon the issue in dispute. [page509]
APPEALS from orders of the Divisional Court (Blair R.S.J., Lane and Epstein JJ.) (2002), 2002 62434 (ON SCDC), 60 O.R. (3d) 304 and (2002), 2002 34779 (ON SCDC), 24 C.P.C. (5th) 68 (supp. reasons) allowing appeals from orders dismissing motions for production of medical reports.
Cases referred to Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359, 125 D.L.R. (4th) 613, 12 C.C.E.L. (2d) 105, 37 C.P.C. (3d) 181 (C.A.), revg (1994), 1994 10551 (ON CA), 21 O.R. (3d) 112, 120 D.L.R. (4th) 557, 7 C.C.E.L. (2d) 188, 34 C.P.C. (3d) 18 (Div. Ct.) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.1.01(3)
Karl Arvai and Christos Nicolis, for appellants Jenny Lynn Reimer and Edward Tanner. Mark L.J. Edwards, for respondents Steven Clark and Wilf Morrison Trucking. Peter W. Kryworuk and Shauna K. Powell, for respondent Dianne Christmas. James E.S. Allin, for intervenor Ontario Trial Lawyers Association.
The judgment of the court was delivered by
[1] CARTHY J.A.: -- These two appeals were heard together and are, by leave of this court, from decisions of the Divisional Court ordering production of medical reports by the plaintiffs to the defendants. The issue is the application, if any, of the implied undertaking rule to the circumstances in each case.
[2] The background facts are neatly summarized in the reasons of Epstein J., speaking for the Divisional Court, as follows [at pp. 306-07 O.R., paras. 1-3]:
Two appeals were heard together. They raise the common issue of the application, if any, of the implied undertaking rule to production obligations in the context of the interrelationship between arbitration proceedings before the Financial Services Commission of Ontario concerning accident benefits and actions for general and pecuniary damages. More specifically, the common issue is whether or not the implied undertaking rule operates to protect medical reports obtained in the arbitration proceeding from disclosure in the tort action.
In each of the two actions involved in this combined appeal, the plaintiffs were injured in a car accident. As a result, the injured parties in each action commenced two legal proceedings. The first was an arbitration proceeding before the Ontario Insurance Commission (now the Financial Services Commission of Ontario) with respect to accident benefits (the "AB proceeding"). The second was their action in this court for general and pecuniary damages (the "tort action").
In each case, the party who sustained the injuries was compelled to submit to medical examinations at the behest of his or her accident benefits insurer. [page510] The defendants in the tort actions requested production of the medical reports prepared as a consequence of these examinations. This request was denied. As a result of the denial, the defendants brought a production motion. In each case, the motions judge relied on the application of the implied undertaking rule to dismiss the motion. In a combined hearing for leave to appeal to this court, Justice Hockin granted leave to appeal in both matters.
[3] In her reasons, Epstein J. finds the documents are relevant to the tort proceedings and are not privileged. She then analyzes rule 30.1.01(3) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] (the deemed undertaking rule) and concludes that, by its own terms, it does not apply to the AB proceedings, but that the common law implied undertaking may have such application. Following analysis of the relevant authorities, she concludes that the common law implied undertaking rule has no application to the attendant circumstances, essentially because the principle behind the rule is directed to protecting against use by the recipient of the information, not to protect the information from all uses. Epstein J. then goes on to speak to the exercise of discretion to enforce production if she is wrong on the main issue. I do not need to deal with the latter because I am in entire agreement with her reasoning and conclusion on the former -- it would be an extension of the common law rule of implied undertaking to apply it to these cases.
[4] I adopt her reasons and add comments of my own only to emphasize how unwarranted any extension of the rule would be.
[5] In Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359, 125 D.L.R. (4th) 613 (C.A.), Morden A.C.J.O. (as he then was) canvassed the origins and history of the common law rule and I take as my springboard one excerpt at p. 369 O.R.:
The rationale for the implied undertaking rule is compendiously stated in Matthews and Malek's Discovery (1992) at p. 253:
The primary rationale for the imposition of the implied undertaking is the protection of privacy. Discovery is an invasion of the right of the individual to keep his own documents to himself. It is a matter of public interest to safeguard that right. The purpose of the undertaking is to protect, so far as is consistent with the proper conduct of the action, the confidentiality of a party's documents. It is in general wrong that one who is compelled by law to produce documents for the purpose of particular proceedings should be in peril of having those documents used by the other party for some purpose other than the purpose of the particular legal proceedings and, in particular, that they should be made available to third parties who might use them to the detriment of the party who has produced them on discovery. A further rationale is the promotion of full discovery, as without such an undertaking the fear of collateral use may in some cases operate as a disincentive to proper discovery. The interests of proper administration of justice require that there should be no disincentive to full and frank discovery.
(Emphasis added) [page511]
[6] It is "used by the other party" and "use them to the detriment of the party who has produced them" that are the keynote phrases. Rule 30.1.01(1) speaks in the same voice -- it is "evidence obtained" on discovery that shall not be "used". These verbs describe the acts of receiving and disseminating information; they do not label the evidence as sealed or privileged. The applicants in the AB proceedings submitted to medical examinations knowing that the information they impart will not be used by the two insurance companies except in those proceedings, and will not be communicated to others for their use in other proceedings. That has not happened here. The insurers in the tort proceedings are different companies and the information is sought, not from the insurers in the AB proceedings, but from the source of that information, the respective plaintiffs in the tort actions. Those plaintiffs are not constrained in any way from the use of their medical information for any purpose. What they argue for is not enforcement of an undertaking, but a protective shield against production of very relevant evidence.
[7] In my view, it would do no service to the implied undertaking rule to extend it in this fashion and would, indeed, be a considerable disservice. It would wrap a cloak of privilege around evidence given in any administrative tribunal hearing where a related issue arose in other proceedings. It would stand in the way of courts and tribunals having available the best evidence, or all of the evidence, bearing upon the issue in dispute.
[8] In sum, the rule should be as it has been -- a party is encouraged to be candid with an opponent knowing that the opponent will not breach the confidence.
[9] The intervenor, Ontario Trial Lawyers Association, supported the appeals and urged the court to restrain production of the reports based upon access to justice concerns. As the argument goes, production would necessitate the plaintiffs hiring more medical experts to oppose those who had written, presumably critical reports, in the earlier proceedings. In other words, plaintiffs were being compelled to arm the defendants with ammunition and would have to hire new experts to fend against them. This overlooks the limit on the number of expert witnesses and, in any event cannot dictate limitations on discovery and detract from a trial on the merits.
[10] For these reasons, I would dismiss both appeals. The parties have submitted bills of costs, each for substantial amounts. There was some novelty to this case and the appellants are not assured of establishing claims over the threshold. I would award costs of the respondents in each appeal at the reduced amount of $7,500 to be paid upon termination of the respective actions. The [page512] appellants sought leave to appeal the costs orders in the Divisional Court. Those costs were payable on the same terms as I am suggesting in this court and in reasonable amounts. I would deny leave to appeal on this ground. The intervenor did not ask for costs.
Appeals dismissed.