COURT FILE NO.: 16-69895
DATE: April 4, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TOMSON et al v. JACKSON et al
BEFORE: Master Marie Fortier
COUNSEL: Frank McNally, for the Plaintiff, Sara Tomson
David Scott Lee, Student-at-Law for the Defendant, Sean Jackson
HEARD: February 27, 2018
E N D O R S E M E N T
Introduction
The defendant, Sean Jackson (“the defendant”), brings this motion for an order requiring the plaintiff, Sara Tomson (“the plaintiff”), to answer undertakings and questions refused during her examination for discovery held on June 5, 2017.
Counsel for the parties were able to resolve all but one of the refusals prior to the hearing of the motion. In particular, at her examination for discovery in this action, the plaintiff refused to produce the transcript of her examination for discovery held in an action that she commenced against Great West Life.
Background
This action arises out of a motor vehicle accident that occurred in October 2014 (“MVA action”). The plaintiff claims damages for injuries sustained in the accident.
The plaintiff gave evidence at her examination for discovery that she had stopped working as a result of the accident and applied for long term disability benefits (“LTD benefits”) through Great West Life. After Great West Life denied her application for LTD benefits, the plaintiff commenced an action against Great West Life (“the Great West Life action”).
The plaintiff refused the defendant’s request for production of the transcript of her examination for discovery in the Great West Life action.
Positions of the Parties
The defendant argues that the discovery transcript from the Great West Life action is relevant to the material issues in the MVA action because the transcript will contain information with respect to the injuries and losses the plaintiff sustained as a result of the motor vehicle accident. The defendant argues that this information is important to properly assess damages and to ensure that the plaintiff does not receive double recovery.
The plaintiff, on the other hand, argues that rule 30.1.01 applies. Under this deemed undertaking rule, the parties and their counsel are deemed to undertake not to use evidence on the plaintiff’s examination for discovery in the Great West Life action for any purpose other than those of that particular action. The plaintiff maintains that the defendant has not shown that the interest of justice outweighs any prejudice that would result to the plaintiff.
Disposition
- For the reasons that follow, the defendant’s motion for an order requiring the plaintiff to produce a copy of the transcript of her examination for discovery in the Great West Life action is granted.
Law and Analysis
- The application of deemed undertakings is governed by rule 30.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which imposes the following obligation on the parties and their lawyers:
Deemed undertaking
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.
- The deemed undertaking rule is designed to protect the efficient conduct of civil litigation and the privacy of the litigants. As explained by Doherty J.A. in Kitchenham v. AXA Insurance (Canada), 2008 ONCA 877, 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.
The exceptions to the deemed undertaking rule are outlined in rules 30.1.01(4), (5), (6), and (7). These exceptions include situations where the person who disclosed the evidence consents, and where evidence is filed with the court, or is given or referred to during a hearing. Of note is the exception found in rule 30.1.01(6), which permits the use of evidence obtained in one proceeding to impeach the testimony of a witness in another proceeding.
Although the deemed undertaking rule applies to evidence obtained under examinations for discovery, it does not relieve a party of the obligation to disclose its own testimony in earlier litigation with respect to the matters in issue in current litigation. There are a number of cases that have held that production of transcripts from an earlier proceeding is appropriate particularly to impeach the testimony of the plaintiff in current proceedings (see Riley v. Tarantello, 2010 ONSC 2122; David v. Tangri, 2017 ONSC 5361; and Antongiovanni v. Phung, [2001] O.T.C. 907 (Ont. S.C.)). Furthermore, it is not necessary for the party seeking production of the transcript of the prior examination for discovery to first demonstrate inconsistencies in the evidence before being granted the relief sought—rather, “it is the possibility of there being inconsistent statements which triggers a special reason for the production of the discovery transcript” (Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 1998 5684 (BC SC), 62 B.C.L.R. (3d) 366 (B.C. S.C.), at para. 22).
In Antongiovanni, the plaintiff commenced an action for damages arising out of a motor vehicle accident (“MVA action”). Prior to the commencement of the MVA action, the plaintiff had also brought actions for statutory accident benefits against Wawanesa (her own auto insurer), and for LTD benefits against Aetna (the insurer with her employer’s group benefits plan). The plaintiff in the MVA action had also been examined for discovery in those preceding actions. At her examination for discovery in the MVA action, the plaintiff refused to produce the transcripts from her previous examinations for discovery.
In Antongiovanni, Master Dash found that the examinations were clearly relevant to the issues in the MVA action. In particular, the extent of plaintiff’s injuries and her ability to return to work, has also been at issue in the preceding accident benefits and LTD actions.
Master Dash found that the prior examinations were relevant not only in the tort action for the disclosure of the evidence relating to her injuries, but also for the purpose of cross-examining the plaintiff at trial in the event of prior inconsistent statements. As explained by Master Dash, rule 30.01(6) specifically provides that the deemed undertaking rule “does not prohibit the use of evidence obtained in one proceeding...to impeach the testimony of a witness in another proceeding.” As held by Master Dash, at para. 75:
In my opinion 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 same 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.
In Antongiovanni, the court ordered production of the transcripts of the prior examinations in both the accident benefits and LTD actions for the limited purposes of rule 30.1.01(6). This meant that the transcripts could not be used for any collateral purpose, such as demanding production of other documents or records disclosed during discoveries (para. 74).
With respect to the matter before me, I find that the plaintiff’s discovery transcript from the Great West Life action is clearly relevant to the material issues in the MVA action, as it will most certainly contain information with respect to the injuries and losses she sustained as a result of the motor vehicle accident.
In my view, the exception to the deemed undertaking rule found in rule 30.1.01(6) applies here. As in the Antongiovanni case, we are dealing with the kind of evidence at which rule 30.1.01(6) is directed, namely prior testimony that is (1) given under oath in another proceeding by the same person who is a party to the current action; and (2) that involves the same factual underpinning (i.e. the same accident and the same injuries).
Accordingly, the defendant’s motion is granted.
Conclusion
- It is ordered that:
a) The plaintiff produce the transcripts from her examination for discovery with respect to the Great West Life action at the cost of the defendant.
b) The use of the examinations for discovery shall be confined to the opportunity to impeach the testimony of the plaintiff in these proceedings and may not be used for any collateral purpose.
c) If the parties are unable to agree on costs, the defendant may submit a brief costs outline not exceeding two pages within 15 days of this endorsement and the plaintiff may respond to the issue of costs within ten days thereafter.
Master Marie Fortier
DATE: April 04, 2018
COURT FILE NO.: 16-69895
DATE: 2018/04/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TOMSON et al v. JACKSON et al
BEFORE: Master Marie Fortier
COUNSEL: Frank McNally, for the Plaintiff
David Scott Lee, Student-at-Law for the Defendant
ENDORSEMENT
Master Marie Fortier