Kitchenham v. AXA Insurance Canada,

• Jurisdiction: Ontario
• Judge: Doherty, Cronk and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2008), 244 O.A.C. 222 (CA),2008 ONCA 877
• Date: 24 December 2008

Kitchenham v. AXA Ins. (2008), 244 O.A.C. 222 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JA.047

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

(C48369; 2008 ONCA 877)

Indexed As: Kitchenham v. AXA Insurance Canada

Ontario Court of Appeal

Doherty, Cronk and Juriansz, JJ.A.

December 24, 2008.

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, the deemed undertaking rule, to the use which could be made of a defence medical report concerning the plaintiff (independent medical exam or "IME") 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 IME 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. Both parties obtained leave to appeal. The plaintiff appealed from the motion judge's decision requiring disclosure of the IME 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 under rule 31.1.01(8).

The Ontario Divisional Court, in a decision reported at 229 O.A.C. 249, allowed the appeal and dismissed the cross-appeal. The defendant obtained leave to appeal. However, while this appeal was pending, the parties proceeded with their motion under rule 31.1.01(8). The motion judge ordered the plaintiff to produce the videotape, but refused to order production of the IME. Both sides obtained leave to appeal that order to the Divisional Court.

The Ontario Court of Appeal arrived at the same result as the Divisional Court, although it had a different interpretation of rule 31.1. Rather than dismissing the appeal immediately, the court released its reasons and allowed the parties an opportunity to decide whether either or both wished to bring a motion under s. 6(2) of the Courts of Justice Act. Section 6(2) would allow the Court of Appeal to hear the pending appeal to the Divisional Court from the motion judge's order under rule 31.1.01(8), as long as the present appeal was still outstanding in the court.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - Rule 30.1 was the deemed undertaking rule - The Ontario Court of Appeal held that an interpretation of rule 30.1 that extended the deemed undertaking to the party who provided the information and to strangers to the litigation in which the information was provided was inconsistent with the meaning of an undertaking in the litigation context - The disclosed information flowed in one direction, from the discovered party to the discovering party - The undertaking flowed in the opposite direction, from the party obtaining the disclosure to the party giving the disclosure - That undertaking did not limit what the discovered party could do in the future with its own information - See paragraphs 25 to 46.

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 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" - The Ontario Court of Appeal agreed that rule 30.1.01(6) did not require the disclosure of protected evidence for impeachment purposes - See paragraphs 52 to 55.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - Rule 30.1 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 Court of Appeal stated that "The interests of the party who was compelled to disclose the information are the only interests that can justify maintaining the undertaking. ... subrule (8) looks only at prejudice to the party who disclosed the evidence ... Claims based on the recipient of the information's privacy interests in the material ... have nothing to do with whether a judge should permit use of evidence otherwise subject to the deemed undertaking." - See paragraphs 58 and 59.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - Rule 30.1 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 Court of Appeal stated that "The discretion in subrule (8) must be exercised on a case-by-case basis. However, where the beneficiary of the undertaking resists relief from that undertaking, the undertaking should only be set aside in 'exceptional circumstances'. Those circumstances must be particularly compelling if a stranger to the undertaking seeks to use material protected by the undertaking." - See paragraph 60.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - Rule 30.1 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 Court of Appeal stated that "Where the interests of the party protected by the deemed undertaking would not be adversely affected by the use of the material, and assuming the material has relevance in the subsequent proceeding, the interest of justice would inevitably outweigh any resulting prejudice to the party who had disclosed the evidence." - See paragraph 65.

Practice - Topic 4252

Discovery - Examination - Range of - Questions related to or relevant and material to issues between the parties - 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, the deemed undertaking rule, to the use which could be made of, inter alia, a defence medical report concerning the plaintiff (independent medical exam or "IME") prepared by Dr. Clifford - During oral argument, the plaintiff's counsel referred to the IME, medical records provided by the plaintiff to Clifford for use in the IME's preparation under rule 33.04, and medical information given to Clifford by the plaintiff in the course of the examination as if all were subject to the deemed undertaking in rule 30.1 and protected from disclosure in the benefits action - The Ontario Court of Appeal held that, of these, only the IME was "obtained" by the plaintiff in the course of discovery in the tort action and therefore subject to the deemed undertaking rule - The other medical information given to Clifford by the plaintiff as required by the Rules flowed from the plaintiff to Clifford and was not "obtained" by the plaintiff in the course of the discovery - The same observation applied to any information conveyed by the plaintiff to Clifford during his examination of her - The plaintiff's obligation to produce her own medical information in the benefits action was unaffected by the fact that she had already produced that information in the tort action for the purpose of the IME's preparation - If the information was relevant and not protected by privilege, it had to be produced - See paragraphs 48 to 51.

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - 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 (AXA) - The Ontario Court of Appeal held, inter alia, that AXA had not demonstrated that the settlement documents from the torts action had any relevance to the benefits action brought by the plaintiff against it - The issue in the benefits action was whether the plaintiff was disabled and unable to work - The impact, if any, of the settlement in the tort action on the plaintiff's motivation to work and, more particularly, the connection between that motivation and the extent to which the plaintiff was actually disabled, were both so speculative as to be beyond even the generous notion of relevance applied at this stage of a proceeding - See paragraphs 12 to 14.

Practice - Topic 4596

Discovery - What documents must be produced - Particular matters - Documents in other related proceedings - [See first, second and third Practice - Topic 4157 , Practice - Topic 4252 and Practice - Topic 4573 ].

Cases Noticed:

Kay v. Posluns (1989), 71 O.R.(2d) 238 (H.C.), refd to. [para. 14].

Goodman v. Rossi (1995), 83 O.A.C. 38; 24 O.R.(3d) 359 (C.A.), folld. [para. 17].

Tanner v. Clark et al. (2003), 169 O.A.C. 152; 63 O.R.(3d) 508 (C.A.), leave to appeal refused, 326 N.R. 195; 194 O.A.C. 195, folld. [paras. 18, 29].

Doucette v. Wee Watch Day Care Systems Inc. et al., [2008] 1 S.C.R. 157; 372 N.R. 95; 252 B.C.A.C. 1; 422 W.A.C. 1; 2008 SCC 8, refd to. [para. 29].

Juman v. Doucette - see Doucette v. Wee Watch Day Care Systems Inc. et al.

Home Office v. Harman, [1983] 1 A.C. 280 (H.L.), refd to. [para. 29].

Tanner v. Clark et al. (2002), 161 O.A.C. 285; 60 O.R.(3d) 304 (Div. Ct.), refd to. [para. 29].

Chandler (B.E.) Co. v. Mor-Flo Industries Inc. et al. (1996), 7 O.T.C. 60; 30 O.R.(3d) 139 (Gen. Div.), refd to. [para. 38].

Rogacki v. Belz et al. (2003), 177 O.A.C. 133; 67 O.R.(3d) 330 (C.A.), folld. [para. 43].

London Life Insurance Co. v. Konney et al. (1998), 114 O.A.C. 376; 41 O.R.(3d) 706 (Div. Ct.), not folld. [para. 44].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 30.1.01 [para. 16].

Authors and Works Noticed:

Holmested, George Smith, and Watson, Garry D., Ontario Civil Procedure (1984) (Looseleaf), vol. 3, p. 30.1-5 [para. 46].

Laskin, John B., The Implied Undertaking, Paper presented to the CBA - Ontario, CLE Conference on Privilege and Confidential Information in Litigation - Current Developments and Future Trends (October 19, 1991), p. 2 [para. 29].

Matthews, Paul, and Malek, Hodge M., Discovery (2nd Ed.1992), p. 253 [para. 31].

Swan, Richard B., The Deemed Undertaking: A Fixture of Civil Litigation in Ontario (2008), 27 Advocates' Soc. J., No. 3, p. 16 [para. 30].

Counsel:

Geoffrey D.E. Adair, Q.C., and Robert M. Ben, for the appellant;

Karl Arvai, for the respondent.

This appeal was heard by Doherty, Cronk and Juriansz, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following decision for the court on December 24, 2008.