Kitchenham v. AXA Insurance Canada

• Jurisdiction: Ontario
• Judge: Cunningham, A.C.J.S.C., Kent and Hackland, JJ.
• Citation: (2007), 229 O.A.C. 249 (DC)
• Court: Superior Court of Justice of Ontario (Canada)
• Date: 16 April 2007

Kitchenham v. AXA Ins. (2007), 229 O.A.C. 249 (DC)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. OC.019

Janet Winifred Kitchenham (appellant) v. AXA Insurance Canada (respondent)

(1542)

Indexed As: Kitchenham v. AXA Insurance Canada

Court of Ontario

Superior Court of Justice

Divisional Court

Cunningham, A.C.J.S.C., Kent and Hackland, JJ.

September 10, 2007.

Summary:

The plaintiff brought two separate claims for injuries arising out of the same motor vehicle accident. The first was a torts claim. The second was a claim against her accident benefits insurer. An issue arose in the second action concerning the application of rule 30.1.01, the deemed undertaking rule, to the use which could be made of a defence medical report concerning the plaintiff and a surveillance video of her, both prepared for the first action.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. 417, held that the medical report and the surveillance video from the prior tort action had to be disclosed by the plaintiff to the defendant in the present action. However, the use to which this evidence could be put (if other than impeachment) would be for the trial judge to determine. The plaintiff appealed from the motion judge's decision requiring disclosure of the defence medical report and the surveillance video. The defendant cross-appealed the order to the extent that it limited the use of such evidence to impeaching the evidence of a witness, unless leave of the trial judge was obtained.

The Ontario Divisional Court allowed the appeal and dismissed the cross-appeal.

Practice - Topic 4154

Discovery - General principles - Time for application for discovery - Rule 30.1.01 was the deemed undertaking rule - Rule 30.1.01(3) provided that "All parties and their counsel 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" - Rule 30.1.01(8) provided that "If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just" - The Ontario Divisional Court held that any application under rule 30.1.01(8) could be made to a motions court judge and did not have to be made to the trial judge - While a trial judge could grant relief under rule 30.1.01(8), it would normally be preferable for such relief to be sought on a pre-trial motion so that the requesting party could know what use was to be permitted of the evidence in question and prepare their case accordingly - See paragraph 19.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - Rule 30.1.01(3) provided that "All parties and their counsel 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" - Rule 30.1.01(6) provided that "Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding" - The Ontario Divisional Court held 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 ... '. ... 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" - See paragraph 18.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - [See Practice - Topic 4154 ].

Practice - Topic 4596

Discovery - What documents must be produced - Particular matters - Documents in other related proceedings - [See Practice - Topic 4154 and first Practice - Topic 4157 ].

Cases Noticed:

Riddick v. Thames Board Mills Ltd., [1977] 3 All E.R. 677 (C.A.), refd to. [para. 7].

Goodman v. Rossi (1995), 83 O.A.C. 38; 24 O.R.(3d) 359 (C.A.), refd to. [para. 8].

D.P. v. Wagg (2004), 187 O.A.C. 26 (C.A.), refd to. [para. 9].

Lac d'Amiante du Québec ltée v. 2858-0702 Québec Inc. et al., [2001] 2 S.C.R. 743; 274 N.R. 201, refd to. [para. 12].

Tanner v. Clark et al. (2003), 169 O.A.C. 152; 63 O.R.(3d) 508 (C.A.), dist. [para. 12].

London Life Insurance Co. v. Konney et al. (1998), 114 O.A.C. 376 (Div. Ct.), refd to. [para. 17].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 30.1.01 [para. 5].

Counsel:

Karl Arvai, for the appellant/plaintiff;

Robert M. Ben, for the respondent/defendant.

This appeal was heard on April 16, 2007, by Cunningham, A.C.J.S.C., Kent and Hackland, JJ., of the Ontario Divisional Court, who delivered the following decision on September 10, 2007.