David v. Tangri: Using the Deemed Undertaking Rule to Use a Plaintiff's Tort Discovery Transcript at the LAT
Sep 14, 2017
The decision of Master Jolley in David v. Tangri touches on the interplay between civil tort matters and accident benefits disputes at the LAT. It also provides a comprehensive summary of the purpose and consequence of the deemed undertaking rule.
The deemed undertaking rule, Rule 30.1.01 of the Rules of Civil Procedure, prohibits the use of evidence and information for any other purpose other than those of the proceeding in which the evidence was obtained.
In order to permit a party to use evidence otherwise covered by the deemed undertaking, the court must be satisfied that the interest of justice outweighs any prejudice that would result to the plaintiff who disclosed the evidence. Examples of potential prejudice are breach of privacy and self-incrimination.
In David v. Tangri, the insurer responding to the tort action was the same insurer responding to the accident benefits claim. The plaintiff’s lawyer waived the potential conflict and consented to the same lawyer to handle the defence of both the tort action and the LAT hearing.
The defendant brought a motion in the tort action, pursuant to Rule 30.1.01, to seek leave to have the claimant’s transcript of her examinations for discovery produced in the accident benefit file to be used at the LAT.
The defendant acknowledged, and the court accepted, that the defendant insurer might have to bring a second motion, at the LAT, to have the discovery transcripts admitted into evidence for the hearing. In other words, just because a party succeeds in having information produced contrary to Rule 30.1.01, this does not mean it will be automatically be accepted into evidence at the LAT.
In this case, the issue of attendant care overlapped between the accident benefits and tort claim. The defendant led evidence to support that the plaintiff had provided inconsistent evidence, regarding attendant care, to the assessors in her accident benefits claim versus the evidence she gave during her examinations for discovery.
Master Jolley relied on the seminal case Juman v. Doucette  SCC 8 (CanLII), where the court noted that where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted. Where the deponent has given contradictory testimony about the same matter in successive or different proceedings, the court found that the public interest in having the information available to each proceeding trumped the deponent’s privacy interest.
Master Jolley found that the evidence provided by the plaintiff in her examinations for discovery could be “highly relevant to the SABS claim for attendant care.”
Further, Master Jolley found that the plaintiff could not have reasonably expected that information between her accident benefits claim and her tort action would be kept separate, where the plaintiff knew that both claims were being handled by the same adjuster and by the same defence lawyer.
With the rise of strictly written hearings being conducted at the LAT, examinations under oath are becoming an important tool for insurers, in order to have the claimant’s evidence, under oath, before adjudicators. Another option for insurers would be to obtain the claimant’s tort examinations for discovery transcripts – just as the defendant did in David v. Tangri.