Tag: implied undertaking

NLCA holds that implied undertaking does not apply to medical report

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.

Unifund Assurance Company v Churchill, 2016 NLCA 73 (CanLII).

Arbitrator says reference to record in opening statement does not extinguish implied undertaking

On September 9th, a British Columbia arbitrator held that a Union’s reference to a “secret recording” in an opening statement did not bring the implied undertaking to an end. The employer, he therefore concluded, breached the undertaking by attempting to investigate the making of the recording after the Union made its opening statement and before the recording was adduced in evidence. The arbitrator referred to the leading cases, which establish that the undertaking comes to an end when records are adduced in evidence. He also held that, in arbitration (which lacks pleadings), it is good policy to sustain the undertaking beyond opening statements because doing so encourages parties to make fulsome opening statements.

Fortis BC Energy Inc and IBEW, Local 213 (9 September 2016, Peckles).