Independent medical examinations and surveillance obtained in one action cannot be disclosed in a different action without a court order

The Plaintiff, Kitchenham, was successful in her action against her insurer who tried to compel the production of an IME report and video taped surveillance of her that was obtained through the discovery process in a previous, but related action.

Kitchenham v. Axa Insurance Canada, [2008] O.J. No. 5413, Ontario Court of Appeal, D.H. Doherty, E.A. Cronk, R. Juriansz, JJ.A., December 24, 2008

The Plaintiff, Kitchenham, was injured in a car accident and sued the other driver.  The other driver had obtained an order compelling Kitchenham to submit to an IME.  The driver had also taken video surveillance of Kitchenham.  The IME report was given to Kitchenham per Rule 33.06, while the surveillance was obtained by Kitchenham pursuant to Rule 30 both through the discovery process.

This case concerns a second action, which was between Kitchenham and AXA Insurance, where Kitchenham claimed that AXA had improperly withheld weekly income benefits and payments for certain rehabilitation related expenses, while she was disabled and unable to work.

The Motions Judge held that the video tape and IME report were captured by the deemed Undertaking Rule, but allowed their disclosure, limiting their use for possible impeachment purposes only.

On Appeal, the Divisional Court agreed with the Motions Judge that both the video tape and the IME were captured under the deemed Undertaking Rule in 30.1, but disagreed with the production order. The Ontario Court of Appeal arrived at the same result as the Divisional Court, but offered a different interpretation of Rule 30.1 than both the Divisional Court and a Motions Judge.

The Court of Appeal held that the Rule exists to protect the privacy interests of the party compelled by the rules of disclosure to provide that information to another party to a litigation.  The Rule provides that protection by prohibiting the party who obtained the information through compelled disclosure from using that information outside of the litigation, except where certain exceptions apply or a Court orders it.

The Court of Appeal considered the verb “obtained”, citing a party who receives evidence through compelled disclosure, obtains that evidence, while a party who provides evidence through compelled disclosure does not obtain that evidence.  The undertaking prevents the recipient of the information from revealing it to third parties.  The fact that Kitchenham is the subject of the video tape is irrelevant. She is bound by the deemed undertaking not to use the video tape except as permitted by the Rule. The Defendant in the first action, the other driver, is the beneficiary of that deemed undertaking. The Court of Appeal interpreted the deemed undertaking Rule to mean that the party who gave out the information is the sole beneficiary afforded protection by the Rule. There is an exception to the Rule stating that its use is not prohibited if the person who disclosed the evidence consents to its production.  That did not apply in this case.  AXA Insurance was not able to satisfy the Court of Appeal that the interests of justice would outweigh the prejudice to Kitchenham in disclosing of the evidence. The Appeal was dismissed.

This case was originally summarized by Neil J. MacDonald and originally edited by David W. Pilley.

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