Dulude v. Lawrence et al., 2022 ONSC 1034

The plaintiff and defendant in this personal injury action brought motions for various production issues in advance of a trial.

Justice Hackland held that the defendant was not required to produce the file from the medical assessment centre he used. Draft reports were covered by litigation privilege. If the defendant called any of the experts at trial then the plaintiff would be entitled to question the experts about their files because litigation privilege would then be waived.

Justice Hackland further held that the defendant was required to have his investigator provide retainer/instruction letters, investigation logs, and identities of persons who obtained surveillance unless the defendant undertook not to call the investigator at trial.

Finally, Justice Hackland held that the plaintiff was required to produce the discovery transcript, affidavit of documents, and answers to undertakings from her action against Great West Life (which had settled shortly before the motions). The issues in dispute were so similar across the two actions that trial fairness required the defendant to have access to the documentation. Justice Hackland waived the deemed undertaking rule if it applied, but noted that Great West Life did not oppose use of the documentation in the personal injury action.

Rodrigues v. Doe et al., 2017 ONSC 2955

The Plaintiff sought damages for injuries resulting from an MVA involving an unidentified driver. The Defendant insurer alleged in its Statement of Defence that the Plaintiff was responsible for the action due to his cell phone use and sought production of the Plaintiff’s cell phone records for the 30 minutes prior to the MVA. The court ordered the Plaintiff to produce the cell phone records on the basis that it was a reasonable and proportionate request and was relevant to the issues in dispute.