Tuesday, July 28th, 2015

By Patrick J. Monaghan

Does the implied undertaking rule apply to surveillance evidence in the possession of the accident benefit insurer?

When the defence of a tort action leads, as it often does, to the issue of the credibility of the plaintiff, nothing quite answers the bell for the tort defendant as well as quality surveillance.

In the hands of a skilled advocate, surveillance, in combination with an energetic cross-examination, can shred the claim of an overreaching plaintiff. Juries, particularly, can react harshly where they feel the plaintiff is not being truthful.

The type of surveillance required here needs to be more than simply confirmation that a person can walk, talk and drive a car (unless there are claims being advanced of an inability to perform such tasks in the litigation) but ideally will disclose an ability to run, jump, bend, lift, carry and otherwise behave in a fashion inconsistent with a claim of accident-related incapacity.

Visual proof of a person performing activities they testified at discovery they were unable to do can be deadly, particularly where the surveillance also contradicts the findings of the plaintiff’s medical experts and the opinions of the future care costs experts.

But surveillance is difficult and expensive to obtain. Timing can make all the difference between success and failure in this endeavour and luck plays a large role. How does one increase the odds of success?

One approach is to take advantage of the work that has already been done by others. If you suspect your tort claimant is gilding the lily and not being forthcoming, chances are that his or her accident benefit carrier may have come to the same conclusion and itself obtained surveillance.   And it is yours for the asking.

In a motion recently heard in Brampton by Justice Trimble,.[1] and argued by Maria Abdoullaeva of MRLT, the plaintiff took the position that the surveillance obtained by his accident benefit carrier arising out of the same accident-related injuries and requested by the defendant at the plaintiff’s discovery, was not producible. The position of the plaintiff was that the surveillance was caught by the common law implied undertaking rule (Rule 30.1 of the Rules, the “deemed undertaking rule” had no application, the surveillance having been obtained as part of the insurer’s investigation, and not by any party to the given proceeding).

His Honour reviewed the genesis of the implied undertaking rule established by the Ontario Court of Appeal,[2] a rule developed to protect a person from what would otherwise be the consequences outside of the scope of the existing litigation that would arise from the information they were obliged to produce.

In the case at hand, Justice Trimble went on to review the key jurisprudence and related writings on the subject to conclude that a request for accident benefits surveillance by the defence in a tort action is not blocked by the implied undertaking rule, for a series of reasons, including:

  • The plaintiff did not have the information, the accident benefit carrier did, and as a result there was no disclosure of information by the plaintiff;
  • While an accident benefit insurer is not permitted, absent more, to disclose such information to a tort insurer this had not occurred;
  • There is no supportable claim for privilege, and there is the prospect that the information will be relevant in the tort action;
  • The implied undertaking rule prevents a party receiving information in certain circumstances from using it against the disclosing party, but does not permit a party to use the rule as a protective shield to limit the production of relevant information about himself or herself.

In conclusion, in the right circumstances, a request for the entire accident benefit file, including surveillance, may open up this additional source of potentially devastating evidence.

[1] Morshed v. Khangura, 2015 ONSC 4781

[2] Goodman v. Rossi, 1995 CanLii II 1888 (CA)


This blog entry has been placed on our website to inform readers in a general way of the authors’ view of the law at the time of its presentation. It is not intended as legal advice and no reliance may be placed on its contents. Some principles of law or procedure may have changed and may no longer be applicable since its publication. The authors and Monaghan Reain Lui Taylor LLP disclaim any liability arising from reliance on any part of this blog entry.

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