Robert Sutherland

The insurer defendant brought a motion seeking relief from the implied undertaking rule to compel production of a transcript from a witness’s examination for discovery taken in a separate but related action arising from the same motor vehicle accident.

The responding party argued that the transcript was protected by the deemed undertaking under rule 30.1.01 of the Rules of Civil Procedure and that privacy interests should prevail.

The court held that where the actions arise from the same incident and involve similar parties and issues, the prejudice associated with disclosure is minimal.

The evidence of the witness was central to the liability issue and access to prior sworn testimony was necessary for effective cross-examination.

The court concluded that the public interest and interests of justice outweighed privacy concerns and ordered disclosure, limiting the transcript’s use to impeachment purposes.

The plaintiffs sought court approval for an advance payment of $1 million (the insurance policy limits) from one set of defendants to a plaintiff under disability.

A co-defendant opposed the approval, arguing the payment would only benefit the plaintiffs' counsel to fund ongoing litigation and that the Insurance Act did not contemplate such a payment without an admission of liability.

The court rejected these arguments, finding no prejudice to the co-defendant and concluding that the advance payment would benefit the plaintiff.

The court approved the advance payment and awarded costs to the plaintiffs.