Vanderwerf v. Westra, 2015 ONSC 2253

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: Vanderwerf v. Westra, 2015 ONSC 2253

COURT FILE NO.: 62595

DATE: 2015/05/21

BETWEEN:

Deborah Vanderwerf

J. Armstrong, for the plaintiff

Plaintiff

• and -

Gregory A. Westra and James Andrews

T. J. Kasi, for the defendants

Defendant

HEARD: February 9, 2015

LEITCH J.:

1This is a motion by the defendants seeking production of documents from the plaintiff.

2The plaintiff has brought a cross-motion for an order declaring that the disputed documents are not producible in this action.

3By the time these motions were heard the contentious issues were: the documentation in the file of West Elgin Mutual Insurance Company (including, in particular, all transcripts, expert reports and defence medicals with respect to a July 5, 2000, motor vehicle accident); and, a break-down of the monies paid to the plaintiff, less than one year before the 2007 accident in issue on this action, in settlement of the July 5, 2000, motor vehicle accident.

Background Facts

4The action relates to a motor vehicle accident which occurred on March 26, 2007. The plaintiff has brought an action claiming damages for injuries sustained in the accident including a claim for pain and suffering, future care costs, out-of-pocket expenses and loss of past and future income. The defendants dispute both liability and damages.

5The trial is scheduled for May 16, 2016, for four weeks.

6A contentious issue in the action is the extent of the plaintiff’s pre-existing medical and accident history which the defendants assert is relevant to the claims in this action. In particular, the defendants note that the plaintiff was involved in a motor vehicle accident on July 5, 2000, and a slip-and-fall on October 6, 2006.

7The plaintiff was examined for discovery on July 22, 2011, and July 15, 2013, and she was questioned in relation to preexisting injuries including those arising from the 2000 motor vehicle accident and the 2006 slip and fall.

8Mr. Trudell who filed an affidavit in support of this motion reviewed various reports from health practitioners who treated the plaintiff in relation to the 2000 and 2006 accidents and, as he deposed in paragraph 5 of his affidavit, “it certainly appears that both these accidents had a significant impact on the plaintiff’s health, the effects of which were unresolved at the time of the accident at issue in this action.”

9With the consent of the parties, by order dated May 24, 2014, Goodman J. required West Elgin Mutual Insurance Company to produce its file to the plaintiff for her inspection and to then produce for the defendants all relevant documents and an index of documents over which privilege is claimed.

10The file of West Elgin Mutual Insurance Company was produced to counsel for the defendants with the exception of certain documents that were removed.

11The plaintiff emphasized the significant production from the West Elgin Mutual Insurance Company file including the complete “Worker’s Compensation file”, the complete “accident/benefits brief” and the complete “medical brief”, with the exception of a letter denying the plaintiff’s application for life insurance on the basis that it was irrelevant, and the complete “medical/rehab brief” with the exception of the same correspondence declining life insurance.

12Although counsel have endeavoured to resolve their disagreements, there remains a relatively large number of documents that remain in dispute. These are listed in paragraph 18 of Ms. Garrison’s affidavit sworn in response to this motion on September 8, 2014, as follows:

1. The Statement of Claim, Amended Statement of Claim, Statement of defence and Statement of Defence to Amended Statement of Claim for 2000 MVA;

2. The Affidavits of Documents and Supplementary Affidavits of Documents of both Plaintiffs and Defendant in the 2000 MVA;

3. Plaintiff Report on National Occupational Classifications and Income Loss Report for Deborah Vanderwerf from Peter Ross to James Mays, Counsel for the Plaintiffs, dated November 11, 2003;

4. Transcript of Examination for Discovery of the Defendant dated February 24, 2003;

5. Transcript of Examination for Discovery of Deborah Vanderwerf dated April 30, 2003;

6. Undertakings lists dated November 6, 2003, and November 27, 2003, from the Plaintiffs’ Examinations for Discovery;

7. Defence Medical Report dated September 29, 2004, by Dr. Hugh Cameron for Barry Sullivan regarding Deborah Vanderwerf;

8. Plaintiff Vocational Assessment of Deborah Vanderwerf dated April 25, 2005, by Rehab First prepared for James Mays;

9. Plaintiff Future Care Cost Report of Deborah Vanderwerf dated May 9, 2005, by Rehab First prepared for James Mays;

10. Plaintiff Addendum Future Case Costs Report of Deborah Vanderwerf dated April 10, 2006, by Rehab First, prepared for James Mays;

11. Defence Medical Report dated May 11, 2005, by Dr. Frank Lipson, Rheumatology & Rehab, for Barry Sullivan regarding Deborah Vanderwerf;

12. Investigation Report prepared by Defendant by Eagle Investigations, dated July 23, 2003, concerning Burty Bob’s Night Club, St. Thomas, where Deborah worked prior to the 2000 MVA;

13. Court Order to attend Defence Medical Examinations;

14. Motion materials;

15. Particulars of testimony for witnesses at trial;

16. Defence Medical Report dated May 11, 2005, by Frank Lipson for Barry Sullivan regarding Deborah Vanderwerf;

17. Defence Addendum Report dated April 27, 2005, by Dr. Hugh Cameron for Barry Sullivan regarding Deborah Vanderwerf;

18. Plaintiff Economic Loss Report of Jack Carr dated April 20, 2006, prepared for James Mays regarding Deborah Vanderwerf;

19. Plaintiff Actuarial Report by Thomas Schinbein, dated May 1, 2006, regarding Deborah, Ashley and Jennie-Lynn Vanderwerf, prepared for James Mays;

20. Reporting Letters from Barry Sullivan, Brown Beattie O’Donovan, counsel for the defendant, to Dave Balogh at West Elgin Mutual Insurance Company;

21. Letter from Equitable Life Insurance Company of Canada to Dr. Ballingall dated July 4, 2000, declining Deborah Vanderwerf’s application for life insurance;

22. A “Memo to File” by an unidentified employee of West Elgin dated January, 12, 2014, regarding update to the file;

23. Correspondence between James Mays, counsel for the Plaintiffs and Barry Sullivan, counsel for the Defendant;

24. Portions of the Canada Pension Plan file pertaining to division of pension credits following divorce. These include CPP notes to file, information forms submitted, copies of identification, copies of former spouse’s employment information, correspondence between Human Resources Development Canada and Deborah regarding income splitting. Please note, no medical information, applications for benefits, or decisions on benefits were removed from the file.

Applicable Rules

13Rule 30.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires a party to disclose every document relevant to any matter in issue in an action.

14Pursuant to rule 30.02(2), every document relevant to any matter in issue shall be produced for inspection if requested, unless privilege is claimed.

15Pursuant to rule 30.04(5), the court may order production for inspection of documents that are not privileged and that are in the possession, control or power of a party.

16There is a contentious issue on this motion as to whether the deemed undertaking rule in rule 30.1.01 is applicable. Subrule (3) provides that all parties and their lawyers are deemed to undertake, not to use evidence or information to which the rule applies (documentary discovery, examination for discovery and medical examination) for any purpose other than those of the proceeding in which the evidence was obtained.

17If the deemed undertaking rule is applicable, subrule (4) provides that the deemed undertaking does not prohibit a use to which the person who disclosed the evidence consents.

18In addition, subrule (8) provides that the court may, on such terms and pursuant to such directions as are just, order that the deemed undertaking rule does not apply to the evidence or the information obtained from it, if satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed the evidence.

Position of the Defendants

19The defendants’ position is that the documents they seek will contest the plaintiff’s credibility that her function had plateaued prior to the 2007 accident, which is the subject of this accident. While there were 24 disputed documents, the defendants’ main focus was on the transcripts, expert reports and defence medicals.

20As set out in paragraph 22 of Mr. Trudell’s affidavit, the defendants’ position is that;

Disclosure and discovery of this information is necessary in order to avoid double recovery and to accurately assess the issues of credibility, causation and damages in this action and the extent to which the plaintiff’s claims as alleged are as a result of pre-existing medical conditions and/or other sources. Without this information, the defendants will be severely and irreparably prejudiced in their ability to defend themselves.

21Further, they submit that what the plaintiff owns and what she disclosed in prior proceedings is “not caught” by the deemed undertaking rule.

22The defendants acknowledge that potentially certain documents obtained by the plaintiff from Mr. Palmer, the defendant in the accident relating to the 2000 accident, are subject to the deemed undertaking rule in rule 30.1.01. However, they note that Mr. Palmer has consented to the use of these documents and therefore, subrule (4) is applicable.

23The defendants’ position is that another group of documents relating to the 2000 accident belong to the plaintiff. These documents are relevant. This relevant documentation was not obtained by any of the processes described in rule 30.1.01 and as a result they are entitled to production.

The position of the plaintiff

24The plaintiff’s position is that the disputed documents are not relevant simply because they could test the plaintiff’s credibility.

25In addition, the plaintiff submits that the deemed undertaking rule applies and the defendants are not entitled to the extraordinary relied contemplated by subrule (8). The plaintiff submits that there is no prejudice to the defendants if there is no relief granted from the deemed undertaking rule considering their examination for discovery, their defence medicals and the other productions.

26As the plaintiff emphasized, there has been considerable discovery and other production. She asserts that her privacy interests are the beneficiary of the protection afforded by the deemed undertaking rule in relation to the contentious evidence that was obtained through the compelled discovery process and this protected evidence need not be disclosed solely for impeachment purposes.

27With respect to the issue of the settlement particulars, the plaintiff’s position is that this information is simply irrelevant.

Disposition

28I will deal first with the documents that are in the plaintiff’s possession that can be described as pleadings, undertaking lists, court orders, motion materials, and correspondence including correspondence between counsel, from counsel to the insurer and from a life insurance company (items 1, 2, 6, 13, 14, 15, 20, 21, 22, 23 and 24). I conclude that these documents are not relevant to any issues in dispute.

29Secondly, I reach the same conclusion respecting the income loss report, the defendant’s examination for discovery transcript, the economic loss report and the actuarial report (items 3, 4, 18 and 19).

30However, I reach a different conclusion with respect to the documents that are in the plaintiff’s possession that can be described as medical and vocational reports and transcripts from her examination for discovery in the action related to the 2000 accident (items 5, 7, 8, 9, 10, 11, 12, 16 and 17). As previously set out, this action was settled less than one year prior to the 2007 accident in issue in this case. I disagree with the plaintiff’s position that these documents are not relevant to any issues in dispute in this action. I find these documents relevant to an understanding of the plaintiff’s disability and impairment of function prior to the 2007 accident. In addition, I disagree with the plaintiff’s submission that these documents are “not necessary for the conduct of the proceeding”. These documents are not irrelevant or unnecessary because the defendants have received a significant number of other documents relating to these same issues. I cannot find, as the plaintiff contends in paragraph 22 of her factum, that “the production of the disputed documents is a fishing expedition to attempt to undermine the credibility of the Plaintiff”.

31The plaintiff does not claim any privilege in these relevant documents. However, the plaintiff’s alternative position is succinctly stated in paragraph 15 of her factum wherein she states that she “believes it would be grossly unfair and prejudicial to her case if the defendants became entitled to receive and rely upon the opinions and reports of the previous Medical-Legal Reports used in the 2000 MVA at trial or otherwise, but it would also result in a further unnecessary and unwarranted invasion of her privacy”. The plaintiff takes the same position with respect to the transcript of her examination of discovery.

32However, the plaintiff’s position is not consistent with the reasoning of the Ontario Court of Appeal in Kitchenham v. Axa Insurance, 2008 ONCA 877. In Kitchenham, the court dealt with a plaintiff’s refusal, in an action relating to accident benefits, to produce a copy of videotape surveillance provided to the plaintiff by the tort defendant, a copy of a report from an independent medical examination provided to the plaintiff by the tort defendant and documents relating to the settlement of the tort action.

33The rationale for the deemed undertaking rule is, as described by Doherty J.A. at para. 10, “to protect the privacy interest of a party compelled by the rules of disclosure to provide that information to another party to the litigation.” The report and videotape were provided to the plaintiff by the tort defendant during discovery. As Doherty J.A. stated at paras. 47 and 48:

The fact that she [the plaintiff] is the subject of that videotape is irrelevant. The plaintiff is bound by the deemed undertaking not to use the videotape except as permitted by the rule. The tort defendant, and not the plaintiff, is the beneficiary of that deemed undertaking. The deemed undertaking protects any privacy interest the tort defendant may have in the use of a copy of the videotape outside of the tort action.

Similarly, …[a]s with the copy of the videotape, the plaintiff is bound by the deemed undertaking not to use the IME in another proceeding and the tort defendant is the beneficiary of that undertaking.

34As Doherty J.A. further observed at para. 51:

the rule has nothing to do with the nature of the information is issue, but turns exclusively on how the party called upon to disclose the information came into possession of that information: Juman v. Doucette, at para. 25. If the party obtained the information in the course of the discovery process, it is subject to the deemed undertaking rule regardless of whether the information is confidential. If, however, the information was not obtained in the discovery process, the deemed undertaking rule has no application no matter how confidential the information might be. A litigant who wishes to resist production on the basis of the nature of the information sought must find shelter in some privilege or challenge the relevancy of the information.

35Ultimately Doherty J.A. concluded at para. 56 that the copy of the report and the videotape which the plaintiff obtained pursuant to discovery in the tort action could not be disclosed in the accident benefit action because of the deemed undertaking rule. As he noted, the defendant in the accident benefit action could obtain a copy of the videotape and the report by obtaining either the consent of the tort defendant or an order of the court pursuant to rule 30.1.01(8).

36In this case, Mr. Palmer, the defendant in the action relating to the 2000 motor vehicle accident, was the party compelled to provide information and the plaintiff is bound by the deemed undertaking rule subject to the exceptions set out in subrules (4) to (7). Mr. Palmer has consented to the defendants in this action having production of the documents he produced on discovery to the plaintiff and therefore, the exception in subrule (4) is applicable and the plaintiff cannot refuse production based on the deemed undertaking rule. This reasoning would apply to items 7, 11, 16 and 17 reports from defence medical examinations) and item 12 (defendant’s investigation report).

37Other documents, which I have found to be relevant and are in the plaintiff’s possession, were not obtained in the course of discovery in the action respecting the 2000 accident or in any other way described in Rule 30.1.01. These documents are items 5 (the plaintiff’s transcript), items 8, 9, 10 (the plaintiff’s vocational assessment and future care cost report).

38The remaining contentious issue relates to the settlement particulars. With respect to this issue, there is a disagreement as to whether these particulars are relevant.

39I disagree with the defendants' position on this issue. I concur with the reasoning of Arrell J. in Anderson v. Cara Operations Ltd. (c.o.b. Montana’s Cookhouse) at paras. 10-11 and E. R. Browne J. in Chappel v. Dysko, [2008] O.J. No. 13 (S.C.) and find that the particulars of settlement are irrelevant to the issues in dispute in this action.

40If costs cannot be resolved between counsel, brief written submissions may be made within the next 30 days.