Case Report – Deemed undertaking protects against disclosure

On September 10th, a panel of the Divisional Court held that a motions judge erred in ordering a plaintiff in a disability insurance action to disclose a defence medical report and surveillance video that were prepared for and disclosed to the plaintiff in a prior tort action. The motions judge had ordered disclosure subject to the deemed undertaking’s constraint on use. The Divisional Court held that the disclosure order, absent an exercise of discretion under sub-rule 30.1.01(8), offended the rule. It also held that the reference to “use of evidence obtained in one proceeding” in sub-rule 30.1.01(6) does not support disclosure subject to a constraint on use:

The motion judge was concerned that under sub-rule 30.1.01(6) one could not use evidence from another proceeding to impeach the testimony of a witness, unless such evidence had been disclosed and therefore, impliedly, the Rule cannot be read to prohibit disclosure, but merely to restrict the use of such evidence once disclosed. We are of the view that sub-rule (6) allowing evidence from another proceeding to be used for impeachment refers to evidence which is lawfully in the hands of the examining party. Sub-rule (6) refers to “evidence obtained in one proceeding …”. We agree with the appellant’s submission that sub-rule (6) does not provide for or require the disclosure of protected evidence for use in impeaching testimony. It merely provides for the limited use of such evidence, when it is lawfully available.

Kitchenham v. AXA Insurance Canada, 2007 CanLII 37892 (ON S.C.D.C.).

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