David v. Tangri, 2017 ONSC 5361
MOTION HEARD: 20170901
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Zenaida David, Plaintiff
AND:
Subash Tangri and Canada Post Corporation, Defendants
BEFORE: Master Jolley
COUNSEL: Aaron Murray and David Edwards, Counsel for the Moving Party Defendants
Norma Barron, Counsel for the Responding Party Plaintiff
HEARD: 1 September 2017
REASONS FOR DECISION
1The plaintiff brought this civil action against Canada Post and its driver Mr. Tangri as a result of a pedestrian accident in 2014. She also commenced an application against Liberty International for statutory accident benefits (the “SABS claim”) now before the Licence Appeal Tribunal (the “LAT”).
2The plaintiff was examined for discovery in the civil action where, it is alleged, she gave evidence that contradicts the information she has tendered in support of the SABS claim.
3The defendants bring this motion pursuant to Rule 30.1.01(8) for an order relieving them from the deemed undertaking contained in Rule 30.1.01(3) that otherwise covers the transcript, specifically for the purpose of using a portion of the transcript to respond to the SABS claim.
The Rules
Deemed Undertaking
4Rule 30.1.01(1)(a)
This Rule applies to evidence obtained under examination for discovery.
5Rule 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.
6Rule 30.1.01(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.
Preliminary Jurisdictional Issue
7Two preliminary jurisdictional issues arose concerning the appropriate process to follow to deal with the relief sought.
8First, the plaintiff took the position that the court did not have jurisdiction to deal with the deemed undertaking issue.
9Second, she argued that the LAT did have jurisdiction to deal with the request and that the defendants should have brought their motion for relief from the deemed undertaking before the LAT rather than before the court. To have the court hear this motion was to usurp the function of the LAT to manage its own process.
Jurisdiction of the Court
10On this first issue, the plaintiff argued that the Rules only apply to proceedings and, as defined, the SABS claim is not a “proceeding”. She further took the position that the LAT had exclusive jurisdiction over the admissibility of evidence at its hearings so that the use to which any civil transcript could be put was not properly before the court.
11On the “proceeding” argument, the evidence which the defendants seek to use was evidence given in a proceeding, namely the civil action and I find that Rule 30.1.01 is therefore applicable. Further, on a clear reading of Rule 30.1.01(8), it is the court that has jurisdiction to grant relief from the application of the Rules and permit evidence that was obtained in a proceeding to be used for any other purpose. It would be anomalous to have another body waive a Rule that governed court proceedings and evidence obtained in those proceedings.
12Lastly on this point, the plaintiff may have misunderstood the relief sought by the defendants from this court. The defendants are not seeking a ruling from this court on the admissibility of this evidence before the LAT. The defendants took the position that any decision of this court on the waiver of the deemed undertaking would still require a further ruling on admissibility by the LAT before that evidence could be admitted in the SABS claim. What they are seeking is the ability to put this evidence before the LAT so that it can determine whether the defendants may use the evidence to respond to the SABS claim. If the defendants are not granted relief from the deemed undertaking on this first step, then it will not be possible for them to tender the evidence to seek that ruling from the LAT as the transcript will be covered by the deemed undertaking and cannot be used for any purposes (Rule 30.1.01(3). This position does not diminish or infringe on the LAT’s ability to determine the admissibility of evidence before it.
Jurisdiction of the LAT
13The plaintiff’s position that the LAT should hear and determine the defendants’ motion for relief from the deemed undertaking seems to be supported by J.V. v. State Farm Mutual Automobile Insurance Co. [2001] O.F.S.C.I.D. No. 175. There the arbitrator noted “It was not disputed that this Commission has the discretion to grant relief from the implied undertaking rule. Section 20 of the Insurance Act authorizes arbitrators to decide any question of fact or law brought before them. Furthermore, section 22 provides arbitrators with a clear authority parallel to that vested in the court to, among other things, order the production of documents.”
14In my view, that case conflated the determination of relief from the deemed undertaking and the admissibility of evidence before the LAT. Rather than roll those two issues into one, I prefer the approach taken in Sandhu v. CAA Insurance Co. [2002] O.F.S.C.I.D. No. 10 at paragraphs 25 and 26 which acknowledged that, where a party is seeking waiver of the deemed undertaking (as opposed to a production order), the appropriate route is to seek that relief from the court. I agree with the assertion that, if the court grants the waiver from the deemed undertaking, “FSCO’s arbitrators remain charged with controlling their own process, and may still conclude that it would be inappropriate to allow the insurer to use the document.”
15For the reasons set out above, I find that the LAT does not have jurisdiction to grant relief from the deemed undertaking and the defendants’ motion is properly before this court. Even if I am wrong and the LAT does have parallel jurisdiction to waive the application of the deemed undertaking, that does not remove from this court its authority under Rule 30.1.01(8) to consider a motion for that relief.
16The defendants took the position that this is a two-step process. They brought this motion to court for relief from the deemed undertaking as the first step. As it is the LAT that controls its own hearing process including the admissibility of evidence, if the defendants are successful here, they intend to bring a motion before the LAT to have the transcript admitted.
Should the court order that Rule 30.1.01(8) does not apply to the evidence in question?
17In order to permit a party to use evidence otherwise covered by the deemed undertaking, the court must be satisfied that the interest of justice outweighs any prejudice that would result to the plaintiff who disclosed the evidence. The onus is on the moving party to satisfy the court that the waiver should be granted. The order sought is a discretionary one.
18The deemed undertaking provides parties in civil proceedings with the assurance that they can participate fully in pre-trial oral and documentary discovery without the risk of that evidence being disclosed outside the proceeding in which it was given, absent a court order. As noted in Juman v. Doucette [2008] SCC 8 at paragraph 32, unless an examinee is satisfied that such exemptions or variations will only be granted in exceptional circumstances, the undertaking will not achieve its intended purpose. Accordingly, unless a statutory exemption overrides the implied undertaking, the onus will be on the person applying for the exemption or variation 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, protection against self-incrimination, and the efficient conduct of civil litigation.
19The Supreme Court of Canada outlined the applicable factors to be considered and provided certain examples. At paragraph 35, the court noted 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 generally be granted. Where the deponent has given contradictory testimony about the same matter in successive or different proceedings, the court found that the public interest in having the information available to each proceeding trumped the deponent’s privacy interest. It stated: “If the contradiction is discovered, the implied undertaking rule would afford no shield to its use for purposes of impeachment…. An undertaking implied by the court (or imposed by the legislature) to make civil litigation more effective should not permit a witness to play games with the administration of justice.”
20While the case of Browne v. McNeilly [1999] O.J. No. 1919 involved a different tribunal, namely the College of Physicians and Surgeons (the “College”), its principles are applicable here. Browne commenced a civil action against two doctors. She also filed a complaint with the College concerning the conduct of the defendants which gave rise to disciplinary proceedings before the College. The defendant doctors were successful in their motion for relief from the deemed undertaking to permit them to introduce the information and evidence given by Browne in the tort action to defend themselves in the disciplinary proceeding. As the court noted at paragraph 23:
In terms of the relief sought regarding rule 30.1 and the ability of the defendant doctors to use information from this proceeding in response to the plaintiff’s complaints to the College of Physicians and Surgeons, I have no difficulty in concluding that this is one of those situations where an exception should be granted as authorized by rule 30.1.01(8). I believe that the plaintiff, having instituted the complaints to the College and having instituted this action, both against the same two physicians and both relating to the same issues, cannot now reasonably complain if information in this action is used by the same parties to answer those complaints. It seems to me that this situation is exactly what was contemplated by rule 30.1.01(8) and the observations of Morden, A.C.J.O. (as he then was) in Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359 (Ont. C.A.).
21In Gleadow v. Nomura Canada Inc. [1996] CarswellOnt 794, a decision of Justice Kiteley, Her Honour granted the plaintiffs leave to use the documents they had obtained as part of the wrongful dismissal action in proceedings they brought under the Employment Standards Act. Like Gleadow, here the parties to the SABS claim and the civil action are the same, particularly in light of the disclosed position of Canada Post as decision maker and payor in both proceedings, discussed further below. Also as in Gleadow, the same issues are being adjudicated (to the extent of the attendant care claim) in both proceedings, even though the principles upon which the issues will be decided are different.
22I accept that the plaintiff has not given contradictory evidence. In fact she has given no “evidence” in the SABS claim to date. However, she has tendered documentation from others that appear to contradict the evidence she gave on her examination for discovery.
23There is an overlapping issue of attendant care in the SABS claim and the civil action. Counsel for the defendants agreed before me that only a small portion of the plaintiff’s transcript is relevant to the attendant care issue and, as such, agreed to limit the request for relief to Questions 400 to 427 inclusive of the transcript of the examination for discovery of the plaintiff held 24 May 2016. It is apparent from the transcript that the evidence the plaintiff gave could be highly relevant to the SABS claim for attendant care.
24I also rely on Antongiovanni v. Phung (2001) 20 C.P.C. (5th) 77 at paragraph 73 where the court granted relief from the deemed undertaking to permit a defendant in a civil action to use the prior testimony given by the plaintiff in her SABS claim and in her claim against her long term disability carrier. As noted by the court, “prior testimony under oath in another proceeding by the same person who is a party to the current action, and which involves the same factual underpinning, namely the accident and the same injuries, is precisely the kind of evidence to which rule 30.1.01(6) is directed. The plaintiff cannot be heard to complain of prejudice if she is impeached by her own testimony under oath. If I do not order production of the transcripts, the evidence will not be available for impeachment.”
25Lastly, on the interest of justice analysis, I note that this is not a case where a stranger to the dispute is seeking leave to use the evidence (Juman v Doucette, supra or JV v. State Farm, supra at paragraph 24) or a case where the evidence is intended to be used for an issue unrelated to the original proceeding (for instance, Goodman v Rossi (1995) 1995 1888 (ON CA), 24 O.R. (3d) 359 (C.A.) where documents obtained in a wrongful dismissal action were sought to be used as the basis of a new action and on a different issue, namely defamation, against a person who was not a party to the wrongful dismissal action.) This is a scenario contemplated by Juman as warranting an exemption.
26On the other end of the scales to be balanced against the interests of justice, the plaintiff argues that she will be prejudiced if the defendants are permitted to introduce in the SABS claim the evidence she gave in the civil action, with its general expectation of privacy. However, in this case the plaintiff’s expectation of privacy had certain limits.
27By email dated 10 November 2015 Beard Winter LLP, counsel for the defendants, wrote to plaintiff’s counsel confirming his retainer in the civil action, advising of the facts around Canada Post’s role in the SABS claim and seeking the consent of plaintiff’s counsel to act for “Canada Post” in both the civil action and the SABS claim. Specifically his email stated:
As you are no doubt aware, I was retained by Canada Post to defend the tort claim. Canada Post has a significant self-insured retention policy. Although Liberty Mutual underwrites the policy to comply with all the Insurance Act [sic], Canada Post maintains all the settlement authority and litigation decision making, given the self-insured retention. This applies to both the tort and AB.
In addition to the tort claim, I understand that the SABS benefits are also in dispute in this matter and a pre-hearing has now been scheduled for January 4th. Although I know that that SABS claim has been initiated against Liberty Mutual, this is also the responsibility of Canada Post under their self-insured retention.
Canada Post has asked me to represent them in relation to the SABS dispute as well. This should greatly simplify matters as we could more easily coordinate global settlement discussions/etc., given that it is actually the same principles [sic] at Canada Post dealing with the matter. In this situation I do not believe there is any conflict issue.
In light of this, can you please confirm your agreement to have our office handling both the tort and the AB dispute.
28By response that same day, counsel for the plaintiff advised “I don’t have a problem with you handling tort and AB.”
29As defence counsel made apparent before the plaintiff provided her consent for them to act for Canada Post globally, this was not a traditional situation where there was one insurer involved with an accident benefits department and a separate tort liability department.
30In this case, Canada Post is the defendant in the civil action and, for all intents and purposes, the respondent in the SABS claim, as disclosed to the plaintiff. Canada Post makes all the decisions in the SABS claim and in the civil claim and has all settlement authority. When the parties conducted a global mediation of the SABS claim and the civil action, the only adjuster in attendance was a representative of Canada Post as he was the adjuster for both claims, to the knowledge of the plaintiff. The plaintiff was aware from the outset that the role of Liberty Mutual was exceedingly limited and was not a decision maker for either claim. By nature of the role Canada Post played, the plaintiff could not reasonably have expected that the information between the SABS claim and the civil claim would be kept separate as they were being dealt with by the same adjuster at Canada Post.
31As such, the plaintiff could not have had a reasonable expectation that her evidence given to Canada Post in the civil action would not be in the possession of Canada Post when the same person was responding to the SABS claim. Because of the fulsome disclosure of Beard Winter LLP, plaintiff’s counsel knew that Canada Post was wearing both the tort defendant hat and the SABS respondent hat. With that information, and knowing there was only one decision maker, it consented to have Beard Winter LLP act for Canada Post in both roles. The plaintiff’s consent places this case within the exception found at paragraph 57 of Dervisholli v. Cervenak and State Farm 2015 ONSC 2286 where the court contemplated that information from the civil action could be communicated to the SABS claim with the consent of the plaintiff.
32In summary, there are two overriding factors that tip the scales in favour of granting relief from the deemed undertaking. First, the plaintiff consented to having Beard Winter act for Canada Post both in the SABS claim and in the civil action and could not reasonably have expected the information she gave to remain private. Second, Canada Post is the only party involved in responding to the SABS claim and to the civil action and, to the plaintiff’s knowledge, there is one Canada Post decision maker for both claims. These two factors distinguish this case from others where relief from the deemed undertaking was not granted.
33I order that the deemed undertaking does not apply to Questions 400 to 427 inclusive of the examination for discovery of the plaintiff held 24 May 2016. The defendants are at liberty to use those transcript excerpts in the manner permitted by the LAT hearing the SABS claim.
34The defendants are entitled to their costs which I fix at $6,500 inclusive of HST and disbursements, payable by the plaintiff within 30 days.
Master Jolley
Date: 11 September 2017
