COURT OF APPEAL FOR ONTARIO

CITATION: Bluewater Health v. Kaila, 2012 ONCA 629

DATE: 20120921

DOCKET: C55405

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Bluewater Health

Applicant (Respondent)

and

Dr. Sanjeev Kaila

Respondent (Appellant)

Counsel:

C. Kuehl, for the appellant

Paula A. Trattner and Aislinn Reid, for the respondent

Heard and released orally: September 19, 2012

On appeal from the judgment of Justice Carey of the Superior Court of Justice, dated March 30, 2012.

By the Court:

[1] The appellant, Dr. Kaila, appeals the order of the application judge that rule 30.1.01(3), the deemed undertaking rule, does not apply to the Affidavit of Dr. Rajiva Singh, dated March 2, and the exhibits thereto.

[2] The background of this matter is, briefly, as follows.

[3] The appellant commenced an action against the respondent hospital, Bluewater Health, in 2008, alleging breach of the agreement governing their relationship. The parties attended a mediation, but were unsuccessful in resolving the issue. It was evident that the lack of documentary evidence of complaints by the appellant to the hospital was a weakness in his case.

[4] Ten days after the mediation, the appellant produced two new e-mails that he intended to use at trial. Both e-mails detail complaints made to other medical staff at the hospital before the action was commenced. Suspicious as to the authenticity of the e-mails, the hospital commenced an investigation, and ultimately obtained an affidavit from Dr. Rajiva Singh, one of the alleged recipients of the e-mails. In the affidavit, Dr. Singh stated that he had no independent recollection of having received the e-mails, and did not have the e-mail address attributed to him at the time the e-mails were purportedly sent and received. The e-mails are exhibits to his affidavit.

[5] Soon after, the parties settled.

[6] Subsequently, the appellant applied for re-appointment to the hospital’s professional medical staff. The hospital’s Medical Advisory Committee (“MAC”) was aware that the hospital doubted the authenticity of the e-mails that had been produced in the action by the appellant, but did not have a copy of Dr. Singh’s affidavit. The MAC recommended to the hospital’s Board that the appellant be re-appointed. The Board referred the matter back to the MAC for reconsideration at a special MAC meeting. Prior to the meeting, the appellant’s counsel was advised of the list of documents that would be considered, which included Dr. Singh’s affidavit. Counsel for the appellant objected, and the meeting was adjourned pending a court determination of whether the deemed undertaking rule applied to the affidavit, and if so, whether relief would be granted.

[7] Rule 30.1.01 (3) of the Rules of Practice provides that all parties and their lawyers are deemed to undertake not to use evidence or information to which the Rule applies for any purposes other than those of the proceeding in which the evidence was obtained. Subrule (1) provides that the Rule applies to, among other things, evidence obtained under Rule 30 (documentary discovery).

[8] We assume for the purpose of this appeal that the deemed undertaking rule applied to the e-mails produced by the appellant.

[9] Subrule 30.1.01(8) provides as follows:

If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just.

[10] The application judge concluded that if the deemed undertaking rule applied, the respondent should be exempted from its application pursuant to subrule 30.1.01 (8). He determined that the interest of justice in denouncing the unethical fabrication of evidence, if in fact it did occur, outweighed any prejudice from the disclosure of the e-mails. The application judge noted that the exchange in the e-mails at issue concerns the same parties as before the court, their content is “benign”, and, if authentic, they do not relate to any private or confidential matters between the parties.

[11] In Juman v. Doucett, 2008 SCC 8, [2008] SCJ No. 8 (S.C.C.), the Supreme Court of Canada considered when relief should be given against deemed undertakings. Binnie J., writing for the court, observed, at para. 35, that, “ where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will be generally granted.”

[12] Here, the same parties are involved and the issue is again the relationship between those parties. Moreover, the e-mails at issue are allegedly an exchange between those very parties. The appellant has no privacy interest in the e-mails, and there is no prejudice to him.

[13] The appellant’s suggestion that the hospital was somehow seeking to use the affidavit for an improper purpose is not supported by the evidence.

[14] A decision to grant relief from the deemed undertaking rule entails an exercise in discretion. In our view, on these facts, the application judge properly concluded that his discretion should be exercised to order that the deemed undertaking rule does not apply to prohibit the provision of Dr. Singh’s affidavit to the MAC.

[15] The appeal is accordingly dismissed.

[16] Costs of the appeal are awarded to the respondents in the amount of $10,000, including taxes and disbursements.

“D. Doherty J.A.”

“Alexandra Hoy J.A.”

“S.E. Pepall J.A.”