Joe Thorne¹ and Justin Hewitt²

In Unifund Assurance Company v Churchill,³  the Newfoundland and Labrador Court of Appeal considered the application of our rules of court and the common law as they relate to disclosure of documents produced in the context of litigation arising from a car accident.

The Court of Appeal unanimously ruled that a medical report that was prepared for a plaintiff’s damages claim against a defendant arising from a car accident was relevant and producible in related wage indemnity benefit litigation between the plaintiff and his insurer.

In reaching its decision, the Court of Appeal also clarified that the common law “implied undertaking rule” does not apply to medical reports or other documents of a factual nature, and is subject to legislative override including civil procedure rules requiring disclosure.

Background

In December 2010, Mr. Churchill was injured in a car accident. He brought a claim for damages against the driver of the other vehicle. He also received wage indemnity benefits from his insurer, Unifund, arising from the accident.

The damages claim settled. Subsequently, Unifund terminated Mr. Churchill’s wage indemnity benefits on the basis that he was no longer disabled. Mr. Churchill commenced an action against Unifund in response.

As part of that claim, Unifund served Mr. Churchill with interrogatories including a question as to whether Mr. Churchill had submitted to any independent medical examination in connection with the personal injury claim against the driver of the other vehicle.

Mr. Churchill refused to answer the interrogatory on the basis that the information was (i) irrelevant, (ii) protected by litigation privilege, and (iii) subject to the implied undertaking rule. Unifund applied to the Supreme Court, Trial Division to compel Mr. Churchill to answer and produce copies of any related medical reports.

The application judge dismissed Unifund’s application on the basis that a medical examination and its results secured in the context of litigation engages the implied undertaking rule.

The implied undertaking rule, in general, prevents a party from using evidence secured in pre-trial discovery in an action for any purpose except within the litigation in which such evidence was secured.⁴

As a result, Mr. Churchill was not required to answer the interrogatory or produce any related medical reports.

Unifund appealed.

The Court of Appeal considered whether Mr. Churchill could refuse to answer the interrogatory on the basis of relevance, litigation privilege, or the implied undertaking rule.

Relevance

Generally, Rules 31 (Interrogatories) and 32 (Discovery and Inspection of Documents), together, require a party to answer questions and produce documents subject only to objections on the basis that the information or documents are irrelevant or protected by privilege.⁵

The Court of Appeal noted that the purpose of Unifund’s interrogatory was to obtain information regarding Mr. Churchill’s medical condition closer to the time of the accident. In the opinion of the Court of Appeal this information could not, with due diligence, be otherwise obtained. Mr. Churchill’s medical condition closer in time to the injury would be relevant to (i) Unifund’s defence against the claim for continuing wage indemnity benefits and (ii) assisting in reaching settlement.

As a result, the Court held that the medical reports were relevant and the Insured could not refuse to answer the Interrogatory on the basis of relevance.⁶

Litigation Privilege

Litigation privilege is a limited form of privilege that applies to protect information or documents obtained or produced for the dominant purpose of investigating and/or preparing a matter for litigation. Unlike solicitor-client privilege, litigation privilege over information and/or documents expires when the litigation ends.

After considering the authorities on litigation privilege, the Court of Appeal noted the special considerations that apply to medical reports governed by Rule 34. Notably, the Court of Appeal cited Rule 34.04(2) which provides that:

The party causing an examination to be made under rule 34.01 shall be entitled upon written request to receive promptly from the party being examined, a report of any examination of that party previously made by any medical practitioner, relating to any relevant mental or physical condition of the party, and the report shall be made available to the medical practitioner making the examination.⁷

Per Rule 34.04(2), if Unifund had requested a medical examination of Mr. Churchill under Rule 34.01, Unifund would be entitled to receive any previous medical reports relevant to Mr. Churchill’s injuries.

Citing its own earlier decision, the Court of Appeal held that Rule 34 operated to overrule litigation privilege in respect of medical reports.⁸ The purpose of litigation privilege is not to impede discovery of facts that could not otherwise be obtained with due diligence.

The Court of Appeal further held that even if litigation privilege applied to Mr. Churchill’s earlier independent medical examination that privilege expired with the settlement of the damages claim.

Implied Undertaking Rule

Finally, the Court considered the implied undertaking rule and referred to the Supreme Court of Canada’s explanation of the scope of the rule:

• evidence compelled during pretrial discovery from a party to civil litigation can be used by the parties only for the purpose of the litigation in which it was obtained;
• the rule applies to oral and documentary information obtained on discovery;
• the rule may only be modified by judicial order or in a situation on immediate and serious danger.⁹

The Court of Appeal held that a medical report is not protected by the implied undertaking rule since it is factual in nature. Moreover, the requirements of Rules 31 (Interrogatories) and 34 (Medical Examinations) override the implied undertaking rule. Justice Welsh, for the Court, held:

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. 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 34.¹⁰

In the opinion of the Court of Appeal, the disclosure of relevant medical reports constitutes factual information that is necessary to ascertain the truth, encourage settlement, and narrow the issues for trial.

Unifund’s appeal was allowed by the unanimous Court of Appeal. Mr. Churchill was required to list the medical report in his document disclosure, and was required to answer the interrogatory and provide a copy of the medical report.

Conclusion

While litigants in this jurisdiction may have benefited from a further delineation of the scope and application of statutory and common law rules, this decision is a common sense interpretation of disclosure obligations and the limitations of the implied undertaking rule.

Litigants must be aware that our rules of court generally provide for production of all relevant documents, subject to limited exception.

In the context of insurance claims following car accidents (and other personal injuries), information and documents related to the claimant’s injuries, treatment, and physical condition should be considered relevant and producible on their face. That includes medical reports produced in the ordinary course of treatment or in response to a court order.

¹ Joe Thorne is a senior associate with Stewart McKelvey’s St. John’s office. He may be reached at joethorne@stewartmckelvey.com.
² Justin Hewitt is an articled clerk with Stewart McKelvey’s St. John’s office. He may be reached at jhewitt@stewartmckelvey.com.
³ 2016 NLCA 73 (“Churchill“)
⁴Juman v. Doucette, 2008 SCC 8, paras 1 and 4 (“Juman“)
⁵Churchill, paras 9 – 12.
⁶Churchill, para 13.
⁷Churchill, para 20.
⁸Churchill, para 21.
⁹Juman, supra note 4.
¹⁰Churchill, para 32.