Lince-Mancilla et al. v. Garcia et al.

[Indexed as: Lince-Mancilla v. Garcia]

Ontario Reports

Ontario Superior Court of Justice,

Himel J.

March 6, 2013

115 O.R. (3d) 314 | 2013 ONSC 1388

Case Summary

Civil procedure — Discovery — Implied undertaking — Plaintiff and S bringing separate actions for damages sustained in repair garage when G's vehicle struck plaintiff and S after S finished working on G's vehicle — S's action ultimately resolved — Issue of whether S instructed G to move his vehicle critical to plaintiff's action — Defendant insurer moving to compel production of transcript of S's examination for discovery — Motion granted — Disclosure of transcript in public interest — Use of transcript confined to impeaching S's testimony.

The defendant G's car was being repaired at a garage operated by the defendant B. After an employee, S, finished working on G's car, G began backing out of the garage and struck S and the plaintiff. The plaintiff and S brought separate actions arising out of that accident. The defendant Aviva was not a party to S's action and did not attend his examination for discovery. S's action was ultimately resolved. Aviva brought a motion for relief from the implied undertaking rule and to require production of a transcript of S's examination for discovery.

Held, the motion should be granted.

The sole issue in the plaintiff's action was liability. There was conflicting evidence on whether S instructed G to move his vehicle. S's evidence was critical. Where the discovery material is to be used for an action which is related to the action in which that material was obtained, or the parties and issues are the same or similar, the prejudice is non-existent. That is particularly so where it is alleged that one deponent may give contradictory testimony about the same matters in successive or different proceedings. Disclosure of the transcript of S's examination for discovery would be in the public interest. The use of that transcript was to be confined to impeaching S's testimony.

Cases referred to

Beazley v. Suzuki Motor Corp., [2009] B.C.J. No. 524, 2009 BCCA 57, 268 B.C.A.C. 69, 67 C.P.C. (6th) 373, 88 B.C.L.R. (4th) 224, affg [2008] B.C.J. No. 1243, 2008 BCSC 850, 58 C.P.C. (6th) 240, 85 B.C.L.R. (4th) 187, 168 A.C.W.S. (3d) 950; [page315] Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906, 125 D.L.R. (4th) 613, 83 O.A.C. 38, 12 C.C.E.L. (2d) 105, 37 C.P.C. (3d) 181, 56 A.C.W.S. (3d) 267 (C.A.); Juman v. Doucette, [2008] 1 S.C.R. 157, [2008] S.C.J. No. 8, 2008 SCC 8, 75 B.C.L.R. (4th) 1, [2008] 4 W.W.R. 1, 50 C.P.C. (6th) 207, EYB 2008-130634, J.E. 2008-501, 290 D.L.R. (4th) 193, 164 A.C.W.S. (3d) 765, 372 N.R. 95; Kitchenham v. AXA Insurance Canada (2008), 94 O.R. (3d) 276, [2008] O.J. No. 5413, 2008 ONCA 877, 306 D.L.R. (4th) 68, 68 C.P.C. (6th) 69, 73 M.V.R. (5th) 4, [2009] I.L.R. I-4783, 244 O.A.C. 222, 69 C.C.L.I. (4th) 51, 173 A.C.W.S. (3d) 80

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30.1, 30.1.01, (3), (8)

Authorities referred to

Papile, Cristiano, "The Implied Undertaking Revisited" (2006), 32 Advocates' Q. 190

MOTION to compel production of the transcript of the examination for discovery.

Salina Chagpar and Brandon Straitman, for plaintiffs.

Daniel Himelfarb, for defendant Bolivar Auto Repairs.

Robert Sutherland and Ashley Artopoulo, for defendant Aviva Insurance Company.

HIMEL J.: —

[1] Counsel for Aviva Insurance Company brings a motion for relief under the exception to the deemed undertaking rule to require a co-defendant to produce the transcript of the examination for discovery from another action of a witness to be called by that co-defendant at this trial.

Factual Background

[2] The plaintiffs are suing for damages arising from a motor vehicle accident that occurred on July 12, 2006 in the automobile repair garage operated by the defendant Bolivar. It is alleged that the plaintiff Raul was injured while waiting to have his car repaired. The repair shop was owned by Pepe Espinosa, who was out at the time, test driving the brakes of the plaintiff's car. At the time of the incident, Jose Adolfo Arzabe Solares was working on the vehicle owned by Ricardo Garcia. After the repairs were done to Mr. Garcia's brakes, Mr. Garcia got into his car and began backing up out of the garage with the intention of parking in another area to have the oil changed. It is alleged that he was unable to stop and that his vehicle struck the plaintiff Raul Lince-Mancilla, Mr. Solares and another person.

[3] Mr. Solares commenced an action against Ricardo Garcia, Pepe Espinosa and Bolivar Auto Repairs for injuries he sustained. [page316] Aviva was not a party to that action. The defendant Bolivar successfully argued that the Workplace Safety and Insurance Appeals Tribunal ("WSIB") had jurisdiction over his case. Mr. Lince-Mancilla commenced an action against Mr. Garcia, Bolivar Auto Repairs and his own insurer Aviva Insurance Company.

[4] During the course of the Solares action and before the WSIB assumed jurisdiction, Mr. Solares was examined for discovery on April 22, 2009. Counsel on behalf of Bolivar, Pepe Espinosa, Ricardo Garcia and Raul Lince-Mancilla were in attendance. Counsel for Aviva was permitted to attend but did not do so. The Solares action was resolved and an order was made dismissing the action.

[5] The examination for discovery of Pepe Espinosa on his own behalf and on behalf of Bolivar Auto Repairs took place on October 26, 2009 with respect to both the Solares action and the action before me. In correspondence, counsel for Bolivar advised that Mr. Solares testified at his discovery that he did not authorize Mr. Garcia to move or drive his vehicle. At the discovery of Mr. Garcia, he said that Mr. Solares had instructed him to move his vehicle out of the garage to another area so that the oil change could be completed.

[6] On February 19, 2013, counsel for Bolivar advised counsel for Aviva that he had located Mr. Solares and planned to call him as a witness although he was not listed as a witness at the pre-trial hearing on January 3, 2013. Counsel for the defendant said he would be using Mr. Garcia's discovery evidence to impeach his testimony should it be necessary. Counsel also confirmed that he had the transcript of Mr. Solares' discovery but that Mr. Solares has not consented to the disclosure of the transcript. When counsel for Aviva became aware of this, he asked to see the transcript so that he could determine whether he required the transcript for trial. Counsel for Bolivar refused to consent to the use of the Solares' transcript and refused to produce the transcript because of the deemed undertaking rule.

[7] Counsel for Aviva now brings a motion to compel the production of the transcript of the examination for discovery of Mr. Solares in his action.

Positions of the Parties

[8] Counsel for Aviva takes the position that liability is the sole issue at this trial. If the jury determines that Mr. Solares instructed Mr. Garcia to move his car when the brakes had not been checked to ensure they were fully operational, then liability may rest solely with the Bolivar garage. If the jury concludes that Mr. Garcia was not instructed to move the vehicle and did [page317] so of his own volition, then the defendant Bolivar may not be liable. It is the submission of Aviva that it is entitled to know the evidence that Mr. Solares gave under oath on April 22, 2009 concerning the circumstances of the accident and the issue of liability. Without knowing what might be valuable evidence, this defendant is not able to properly cross-examine Mr. Solares and attempt to impeach his credibility if necessary. Counsel seeks an order that the deemed undertaking rule does not apply to the evidence taken at the discovery or that there is provision for an exemption to the rule in order to allow counsel to use the evidence from one proceeding to impeach the testimony of a witness in another proceeding, particularly when certain of the parties and the issues are the same. Counsel requests an order compelling counsel for Bolivar to disclose the transcript.

[9] Counsel for the plaintiffs supports the position of Aviva and argues that the transcript should be produced to enable proper cross-examination.

[10] Counsel for the defendant Bolivar takes the position that the privacy interests of Mr. Solares take precedence over the interests of the other parties and that the transcript of the examination for discovery is protected from disclosure by a deemed undertaking under rule 30.1.01 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194]. He submits that the parties in the two actions are not the same and that Aviva has failed to demonstrate that justice requires that the transcript be disclosed or that Mr. Solares' privacy rights should be trumped by Aviva's wish to look for evidence to impeach his testimony as a witness. Counsel also argues that Aviva's motion is untimely and that it knew that Mr. Solares was examined for discovery in relation to his own action but, instead, waited until the commencement of this trial to bring this motion.

Analysis and the Law

[11] Rule 30.1.01 of the Rules of Civil Procedure codifies the law in Ontario concerning the implied undertaking as outlined in Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906 (C.A.) concerning documentary discovery. It extends the undertaking to include oral evidence and information obtained on examinations for discovery. The rule is designed to protect the privacy interests that parties have in their information. The court may relieve against the implied undertaking if it is satisfied that the interests of justice outweigh any prejudice that would result to a party who disclosed evidence in accordance with the discovery rules. If the court is satisfied in the interests of justice that the use of the evidence or information in the other proceeding would [page318] outweigh any prejudice to the party who disclosed the evidence, then it may order that the deemed undertaking rule does not apply. The relevant portions of the Rule are as follows:

30.1.01(3) 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.

(4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents.

(5) Subrule (3) does not prohibit the use, for any purpose, of,

(a) evidence that is filed with the court;

(b) evidence that is given or referred to during a hearing;

(c) information obtained from evidence referred to in clause (a) or (b).

(6) Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding.

(7) Subrule (3) does not prohibit the use of evidence or information in accordance with subrule 31.11(8) (subsequent action).

(8) 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.

[12] In Juman v. Doucette, 2008 SCC 8, [2008] 1 S.C.R. 157, [2008] S.C.J. No. 8, Justice Binnie discussed the scope of the "implied undertaking rule" under which evidence compelled during pre-trial discovery from a party to civil litigation can be used by the parties only for the purpose of the litigation in which it was obtained. The root of the rule is that there is a statutory compulsion to participate fully in pre-trial oral and documentary discovery. However, there are also issues of prejudice and privacy interests. While the case pertained to the rules in place in British Columbia concerning the use of discovery evidence, the general principles are pertinent to the case at bar.

[13] Binnie J. wrote, at para. 32: "An application to modify or relieve against an implied undertaking requires an applicant to demonstrate to the court on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation." He then discussed that some provinces have enacted rules governing when relief should be given against such implied or deemed undertakings and wrote as follows [at para. 35]:

The case law provides some guidance to the exercise of the court's discretion. For example, where discovery material in one action is sought to be [page319] 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 generally be granted[.]

[14] In Beazley v. Suzuki Motor Corp., [2008] B.C.J. No. 1243, 2008 BCSC 850, affd [2009] B.C.J. No. 524, 2009 BCCA 57, the plaintiffs were suing the vehicle manufacturer for a defectively designed vehicle. They sought production of trial and discovery transcripts from other litigation related to the design of the vehicle and customer complaints about the same vehicle involved in the action. The court held that they were relevant and must be produced. The court (S.C.) said, at para. 31: "Offsetting this concern is the fact that the transcripts deal with issues similar to those involved in this litigation. They may possibly contain evidence or admissions which will be of value to and otherwise not available to the plaintiffs."

[15] In the case of Kitchenham v. AXA Insurance Canada (2008), 2008 ONCA 877, 94 O.R. (3d) 276, [2008] O.J. No. 5413 (C.A.), the court upheld the Divisional Court decision that interpreted rule 30.1 and wrote, at para. 10:

In my view, the Rule exists to protect the privacy interest of the party compelled by the rules of disclosure to provide that information to another party to the litigation. The Rule provides that protection by prohibiting the party who obtained the information through compelled disclosure from using that information outside of the litigation, except where certain exceptions apply or the court makes an order permitting its use.

[16] The rationale underlying the rule was discussed by Doherty J.A. when he quoted [at para. 28] Cristiano Papile, "The Implied Undertaking Revisited" (2006), 32 Advocates' Q. 190, at p. 190:

One such safeguard is the implied undertaking of confidentiality, which circumscribes the use that a party receiving discovery may make of the information it obtains. Where the implied undertaking exists, the party in receipt of information is deemed to give an undertaking to the court that it will not use that information for any collateral or ulterior purpose unrelated to the litigation at hand.

[17] Justice Doherty went on to say, at para. 30:

The implied undertaking promotes the due administration of justice in the conduct of civil litigation in two ways. First, it encourages full and frank disclosure on discovery by the parties. It does so by interdicting, except with the court's permission, the subsequent use of the disclosed material by the party obtaining that disclosure for any purpose outside of the litigation in which the disclosure was made. Second, the implied undertaking accepts that the privacy interests of litigants must, subject to legitimate privilege claims, yield to the disclosure obligation within the litigation, but that those interests should be protected in respect of matters other than the litigation: Juman v. Doucette, at paras. 23-27; Richard B. Swan, "The Deemed Undertaking: A fixture of Civil Litigation in Ontario" (Winter 2008) 27 Advocates' Soc. J., No. 3, p. 16. [page320]

[18] While the primary rationale for the implied undertaking is the protection of privacy, there are situations where the court may decide that the rule does not apply to the evidence if satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed the evidence. However, rule 30.1.01(3) does not give a party an automatic right to disclosure of protected evidence for impeachment purposes.

Decision

[19] The action launched by Mr. Solares and the action launched by the plaintiffs in this action arise from the same events and circumstances. In the case before me, the sole issue is liability and the evidence of Mr. Solares, who was also a witness to the incident, is critical. It would be prejudicial to the plaintiffs to deny them the opportunity to review Mr. Solares' sworn evidence taken from his discovery in relation to the same incident on July 12, 2006. That evidence may be critical in order to impeach the testimony of the witness. Where the discovered material is to be used for an action which is related to the action in which the discovery material was obtained or the parties are the same or similar and the issues are the same or similar, the prejudice is non-existent: see Juman v. Doucette, supra, at para. 35. This is particularly so where it is alleged that the deponent may give contradictory testimony about the same matters in successive or different proceedings: Juman v. Doucette, supra, at para. 41.

[20] The onus to establish that it is in the public interest that disclosure be compelled is on the applicant. In the circumstances of this case, the moving party Aviva has demonstrated that the exception as set out at subsection 31.1.01(8) should be applied. It is in the public interest that the transcript of the examination for discovery of Mr. Solares be disclosed. In my view, the right of privacy is outweighed by interests at stake in the action before me. Accordingly, the transcript of the examination for discovery is ordered produced but it may not be used for any collateral purpose. The use of the transcript is confined to the opportunity to impeach the testimony of Mr. Solares in these proceedings if that becomes necessary.

[21] Costs of this motion are reserved to the conclusion of this trial.

Motion granted.

End of Document