Case Report – Ont. C.A. considers deemed undertaking rule

On December 24th, the Ontario Court of Appeal issued a judgement on the deemed undertaking rule. It held:

  • That it only proscribes use and disclosure of information obtained in discovery by the recipient (and not by the provider, whose privacy interest the rule protects)
  • That it acts as a shield against production in a subsequent action subject to its exceptions, including the exception for court-ordered relief
  • The “interests of justice” versus “prejudice” balancing test for court-ordered relief does not protect the personal privacy interest of an individual in the records at issue

The last point arose because the records being considered by the Court included video surveillance footage and medical information of the plaintiff. She had obtained these records from her opponent in prior litigation, thereby engaging her opponent’s privacy interest. It appears that she attempted to argue that her personal privacy interest in the records was relevant to the exercise of discretion in ordering relief given the content of the records. The court disagreed, and said the only privacy interest engaged by the rule is that of a party compelled to produce records.

Kitchenham v. AXA Insurance Canada, 2008 ONCA 877 CanLII.


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