COURT FILE AND PARTIES

COURT FILE NO. : 08-CV-40947

DATE: 2013/02/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mehran Faridani v. Ivanette Stubbert et. al.

BEFORE: Master Macleod

COUNSEL: Timothy N. Sullivan for the defendant and plaintiff by counterclaim, Ivanette Stubbert, (Moving Party)

Mary C. Simms for the plaintiff, defendant by counterclaim, (Responding Party)

HEARD: February 22nd, 2013

REASONS FOR DECISION

[1] This is a motion to amend the counterclaim to add a plea of sexual battery. The information giving rise to this proposed amendment is information that was gleaned from the medical records of the plaintiff produced pursuant to Rules 30 & 31.

[2] The primary question before the court is whether or not this amendment is prohibited by the deemed undertaking rule. I have concluded that the deemed undertaking applies, that it would be inappropriate to grant relief, and this is a bar to asserting a new cause of action.

Background

[3] The plaintiff and the defendant were engaged to be married and they were involved in a romantic and sexual relationship for approximately six months in 2006. The relationship ended acrimoniously with allegations of assault for which the plaintiff was criminally prosecuted. He was acquitted and he then launched this action for malicious and negligent prosecution. The defendant then counterclaimed seeking inter alia damages for the same assault. It is of course possible to prove civil responsibility for tortious conduct on the civil standard of proof even if the Crown could not secure a conviction for a criminal offence.

[4] Because the plaintiff claimed damages for trauma resulting from his allegedly wrongful arrest and prosecution, he was required to produce his pre-incident medical records. Those records contained a notation which appears to indicate that the plaintiff was diagnosed and treated for genital “primary herpes simplex” in January of 1994. It is worth noting that this was more than six years before their relationship began. The medical notes also document advice given to the plaintiff in February of 1994 that “we do not think that it is possible to shed virus and infect others when the virus is in the dormant stage”. None of this medical information was previously known to the defendant.

[5] The defendant’s evidence is that she first discovered this information when reviewing the medical disclosure produced by the plaintiff in his answers to undertakings. That disclosure took place at her lawyer’s office on October 4th, 2011. The defendant then formed the view that every time the parties had sexual intercourse during the relationship she had not given informed consent and therefore each sexual act was an act of battery. She seeks to amend her counterclaim to seek damages for this cause of action.

[6] The important question posed by the motion is whether or not the defendant should be allowed to sue the plaintiff on the basis of information she learned through the process of production and discovery? Or is this precisely the harm prohibited by the deemed undertaking rule?

Analysis

[7] Pursuant to Rule 26.01 an amendment must be permitted unless it creates prejudice for the other party that cannot be remedied in costs. Prejudice that arises from simply facing the amended pleading is insufficient to bar an amendment because that is simply the prejudice that results from facing any successful plea.[^1] In any event there is little purpose served in refusing an amendment which could just as easily be commenced as a separate action.

[8] One basis for refusing an amendment is if the plea itself is untenable but that is not the case here. Based on the defendant’s evidence that she discovered the previous diagnosis of Herpes on October 4th, 2011, the cause of action is not statute barred.[^2] Moreover at a pleading level only the proposed cause of action could not be struck out under Rule 25.11 or Rule 21.[^3]

[9] Sexual relationships are relationships of intimacy and trust. Failure to disclose a serious risk to a partner may well result in liability at least for negligence and in cases where the non disclosure amounts to fraud or deceit may constitute sexual battery or even a criminal offence. Liability for battery arises if the sex act is without consent and consent may be vitiated by fraud or deceit.[^4] There are circumstances in which the courts have held that failure to disclose the risk of a potentially life threatening infection such as HIV could be found to support such a claim.[^5] It is not clear how broad that principle is so it would not be appropriate to reject the claim at a pleadings stage.

[10] It is only if there is no chance of success on the face of the pleading that the amendment may be held to be untenable at law. In that analysis the court does not ordinarily concern itself with whether or not the plaintiff has sufficient evidence.[^6] For purposes of the motion I accept that the proposed amendment is a tenable plea.

[11] An amendment may also be refused if the evidence discloses that the pleading is an abuse of process. A breach of the deemed undertaking rule which may constitute contempt of court would readily be found to be such an abuse.

[12] The deemed undertaking rule was a common law rule elevated to the status of an undertaking to the court. This was definitively recognized in Ontario at the appellate level in Goodman v. Rossi.[^7] Subsequently it has been formalized in Rule 30.1 of the Rules of Civil Procedure but it has also been held to apply in circumstances not covered by the rule or in the absence of a specific rule. The Supreme Court of Canada has recognized that in Canada the deemed undertaking applies to any discovery evidence which the law compels a party to produce.[^8]

[13] The public interest in ensuring full and frank disclosure in civil proceedings must be balanced against reasonable protection for the privacy interests of the person subject to compulsion. As such the party obtaining the information is deemed to undertake to the court not to misuse the “documents and answers … for a purpose collateral to or ulterior to the proceedings in which they are demanded.”[^9]

[14] Rule 30.1 specifically applies to “evidence obtained” under Rule 30 or 31 as a result of documentary production or examination for discovery. It provides that “all parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained”.

[15] Mr. Sullivan argues that the undertaking should not apply in the present case as the parties are already involved in a proceeding and it is the “proceeding in which the evidence was obtained”. He observes correctly that amendment of the pleadings to conform with the evidence obtained on discovery or to add a party whose identity is revealed during discovery is not uncommon. There is however a difference between amending a claim by adding particulars or material facts or properly naming a party on the one hand and grafting on a new claim involving a new cause of action on the other. This is particularly so if the only source of knowledge of the new cause of action is in the documents. In the case at bar it is only the information gleaned from the medical records which gives the defendant cause to believe she has a new cause of action against the plaintiff.

[16] This is almost exactly on all fours with Goodman v. Rossi. In that case Ms. Goodman was suing NRS Royal Realty Inc. for wrongful dismissal. Mr. Rossi was the president of the defendant company and effectively her employer. In the discovery process a copy of a Notice of Employee Change sent to the Ministry of Consumer and Commercial Relations by Mr. Rossi was disclosed and it appeared to contain defamatory remarks about Ms. Goodman. She sued Mr. Rossi for defamation and he in turn sought an order dismissing her action. This is different from the present case only because the cause of action was asserted in a separate proceeding and because the wrongful dismissal action was against the corporation while the defamation action was against the president in his personal capacity. It would be a narrow construction of Goodman to find that this means the undertaking does not apply.

[17] In fact close reading of the decision shows that a broad construction is justified. In citing an earlier decision of Lindsey v. Le Suer the court cited with approval the passage that because a party had been “given access to and the use of the documents for a particular purpose … there is necessarily an implication that they are not to be used for any other purpose”.[^10] In formulating the rationale for elevating the rule to a deemed undertaking the court observed that “the results of such compulsion should likewise be limited to the purpose for which the [discovery] order was made, namely the purposes of that litigation then before the court”.[^11]

[18] In my view, notwithstanding that this is litigation between the same parties and notwithstanding that the defendant seeks to amend the counterclaim to add the new cause of action to the existing proceeding, the deemed undertaking applies. To launch a new proceeding against the plaintiff or to amend the existing counterclaim to add a new cause of action amounts to the same thing. In either case it is new litigation based on discovery disclosure. Accordingly the defendant may only use this information for this purpose with leave of the court.

[19] Leave should be granted if the injustice to the party being discovered is outweighed by the injustice to the discovering party if she could not make use of the discovered documents.[^12] This now finds expression in subrule (8) which permits the court to relieve from the undertaking on terms. “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.”[^13]

[20] For purpose of this balancing analysis, unlike a pleading motion, it is appropriate to consider the strength of the case both as to liability and damages and for that purpose to at least consider the evidence on which the proposed claim is based. In the case at bar the defendant has not deposed that she was in fact infected by her partner nor even that she was seriously at risk. Still less is there any reason to think that the plaintiff knew or ought to have known he was infectious but failed to disclose this. To the contrary the medical advice he received appears to have been that he could not be infectious unless he was symptomatic. So the harm to the plaintiff if she is not allowed to pursue this claim would appear to be at most the possibility of nominal damages. Even that would require her first to prove there was a duty to disclose the diagnosis from 6 years earlier and secondly that failure to do so amounts to deceit or fraud. Her only knowledge about the diagnosis is in the plaintiff’s medical records that he was compelled to disclose because of the current litigation.

[21] In Goodman the court adopted the principle that the processes of the court cannot be or appear to be an instrument of the initiation of litigation not otherwise contemplated or part of the cause of action which disclosed the potentially new claim. The court refused to grant relief from the deemed undertaking because it assessed the prejudice to Ms. Goodman to be less than the potential harm to the public interest in full and frank discovery. To permit the defamation action carried with it not only the injustice of penalizing Mr. Rossi for having made full discovery but also the risk of prejudice in the form of exerting extraneous pressure with respect to settlement of the unjust dismissal action. This analysis is almost exactly applicable to the case at bar.

[22] This is not a case in which the ends of justice are served by granting relief from the deemed undertaking rule. This is already a difficult case in which the plaintiff seeks damages in circumstances where both liability and damages are difficult to establish and in which the defendant seeks to prove civilly what was rejected in a criminal court. Adding these allegations to the mix would more likely impede a just resolution than foster it.

[23] I would add of course that, though she also asked for relief from the rule for that purpose, the defendant does not need relief from the deemed undertaking rule to seek advice from her physician or to be tested for infection. She need not reveal the discovery evidence for that purpose. I will not speculate concerning the possibility that medical investigation could independently uncover evidence supporting a cause of action. Obviously if that turns out to be the case and it appeared there were significant damages then an action could be commenced.

Conclusion

[24] It follows that the contested portion of the motion to amend must be dismissed. There will be an order that the deemed undertaking applies to the medical records and prohibits use of those records to found a new cause of action. Relief from the deemed undertaking for the purpose of amending the counterclaim is denied.

[25] There were various other proposed amendments which were not opposed. These included an amendment to the title of the proceedings.

[26] The defendant shall have 30 days to redraft the proposed pleading to include the amendments that are not opposed and to remove those that have been found to be objectionable. The parties will then have to agree to a revised timetable and may require consequential orders. I may be spoken to for a case management order if required.

[27] There is also the question of costs. If counsel can agree on costs then they may incorporate their agreement in the formal order. Should it be necessary I may be spoken to for further direction within the next 30 days. If neither of these occur, there will be no order as to costs.

Master C. MacLeod

Date: February 26th, 2013

[^1]: See eg. L’Abbé v. Allen Vanguard 2013 ONSC 1098 (Master); Plante v. Industrial Alliance Life Insurance Company (2003) 2003 64295 (ON SC), 66 O.R. (3d) 74 (S.C.J. - Master)

[^2]: The passing of the limitation period infers prejudice and is grounds for refusing an amendment. See Frohlick v. Pinkerton Canada Ltd. (2008) 2008 ONCA 3, 88 O.R. (3d) 401 (C.A.)

[^3]: This is the same test under Rule 26.01. See Plante, supra.

[^4]: See Linden & Feldthusen, Canadian Tort Law, Eighth Edition, Butterworths, 2006, @ pp. 75 & 76

[^5]: Bell-Ginsburg v. Ginsburg (1993) 1993 8461 (ON SC), 14 O.R. (3d) 217 (Gen. Div.)

[^6]: Plante, supra

[^7]: (1995) 1995 1888 (ON CA), 24 O.R. (3d) 359 (C.A.)

[^8]: Juman v. Doucette 2008 SCC 8, [2008] 1 S.C.R. 157

[^9]: Juman, supra @para. 26

[^10]: Goodman v. Rossi @ page 8, Lexis Nexus Quicklaw version, 13/02/2013 third last paragraph

[^11]: Ibid, p. 11, Quicklaw version, first paragraph and p. 13, 4th paragraph

[^12]: Ibid, p 16, Quicklaw version, 2d paragraph.

[^13]: Subrule 30.1 (8)