On December 21st the Newfoundland and Labrador Court of Appeal held that the implied undertaking does not apply to a medical report produced in a related personal injury action.
The plaintiff was injured in a motor vehicle accident and submitted to an examination in his action against the driver. That action settled, but the plaintiff continued a separate action against his own insurer for disability benefits, which prompted the insurer to seek the report. The Court commented:
In this case, it is difficult to see how the implied undertaking rule is engaged. A medical report, being factual in nature, would be neutral insofar as encouraging the provision of complete and candid discovery, one of the rationales for the rule. Further, the proposition stated by Binnie J. [in Juman v Doucette] that “whatever is disclosed in the discovery room stays in the discovery room” loses its impact and relevance when considered in the context of the factual nature of medical reports and the operation of rules 31 and 34.
The Court also held that the undertaking – implicit rather than express in Newfoundland – is “overridden” by the provisions of the Newfoundland Rules of the Supreme Court that favour production of medical reports.