February 2003

Implied Undertaking Rule

Tanner et al v. Clark et al
Court of Appeal of Ontario Docket C38886
Released February 2003

Two appeals were heard together before the Ontario Court of Appeal on the issue of whether documentation provided by the plaintiff in one proceeding could be compelled by parties in another proceeding where the issues were similar. The rule is known as the "implied undertaking rule" and is found in Rule 30.1.01 of the Rule of Civil Procedure. This rule protects the producing party from unauthorized use by others of its documentation or information that it has provided within the confines of a legal action. This rule is based on privacy and seeks to protect against the possibility that such unauthorized use would cause detriment to the party when same was provided in full and frank disclosure but for limited purposes.

In the cases appealed, the plaintiffs had been compelled to attend medical examinations by the defendant accident benefits insurer in the arbitration proceedings before the Ontario Insurance Commission. The defendant insurer in the related tort action requested and was refused production of those medical reports on the basis of the deemed undertaking rule. The motions judge ordered production and the such order was appealed.

The Court of Appeal held that the reports were to be produced to counsel for the tort defendants in the related action. The plaintiffs were not constrained in their production of the reports which were relevant evidence and related to the same complaints. The plaintiffs could take comfort in that the information as provided would not be used outside the relevant proceeding for unrelated purposes but could not attempt to shield access to such information by hiding behind this rule. The Court of Appeal was not convinced that the plaintiff would be then be compelled to produce more medical experts as a result given the limitation upon numbers of experts allowed. The Court balanced the need for full and frank disclosure on related matters against the public interest of the plaintiff's privacy and determined that production of documentation on a similar related issue was necessary given the nature and relevance of the evidence.

KES