Before a personal-injury lawsuit in Ontario goes to trial, the parties engage in discovery. Discovery is a process by which the parties share information and evidence with each other to encourage a settlement and avoid “trial by surprise”—the sort of unanticipated evidence or witnesses that make fictional lawsuits so entertaining.
Normally, the materials shared in discovery in one case cannot be used in another case, but there are exceptions. A recent case decided by the Ontario Superior Court of Justice (called Loccident v. State Farm) involved one such exception. In that case, the master ordered the plaintiff to share his long term disability discovery transcript with his accident-benefits insurer.
(A master, or case management master, is a judicial official who helps the judge in a case by resolving certain issues—like discovery disputes—in an Ontario lawsuit.)
What is a discovery transcript and how might Loccident matter for you? Read on to find out!
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Disability Claims vs. Injury Claims
Before we get to the meat of this post, we should clarify an important point: An injury that causes a person to become disabled may give rise to several distinct legal claims, including:
- A disability claim against a disability insurer;
- If the injury was caused by another person’s wrongful act, a tort claim against that person; and
- If the injury occurred as the result of an automobile accident, a Statutory Accident Benefits claim against the injured person’s own auto insurer.
Each of these claims could be pursued in a separate legal action, and each of those actions could have a separate discovery process. That’s what happened in Loccident: State Farm, the plaintiff’s automobile insurer, wanted him to produce the discovery transcript from an earlier claim he brought against his long-term disability insurer.
(Alternatively, an injured person might be able to consolidate those claims into a single lawsuit, as we recently explained.)
Discovery and Discovery Transcripts
In Ontario, discovery is governed by the Ontario Rules of Civil Procedure. Those rules set out the basics for how a case proceeds through the courts, including how the discovery process works. In general, the rules refer to five types of discovery:
- Discovery of documents;
- Examination for discovery;
- Inspection of property (such as, e.g., a car part alleged to have caused an accident);
- Medical examination of a party whose physical or mental condition is in question in the case; and
- Discovery by written questions.
In an examination for discovery, the lawyer for one party will ask questions of the other party, which the other party will be required to answer. Although the examination occurs outside of court, the party answering questions is placed under oath, just like when testifying before a judge.
Everything that’s said during an examination for discovery is recorded by a court reporter. The reporter then turns that record into a written document, called the transcript or discovery transcript. Under Rule 31.11, the questions and answers in a discovery transcript can be admitted as evidence at trial if necessary.
Loccident v. State Farm: Using Long-Term Disability Discovery Transcripts in a Related Injury Case
Another rule is called the Deemed Undertaking Rule. It explains when and how evidence or information obtained through discovery in one case can be used in another.
In general, the Deemed Undertaking Rule says that such evidence or information can only be used in the case in which it was obtained. But it then lists several exceptions to this restriction. Under those exceptions, evidence or information obtained through discovery in one case can be used in another when:
- The person who disclosed the evidence consents to the use;
- The evidence was filed with the court or given or referred to during a hearing;
- The evidence is used to impeach the testimony of a witness in the other case;
- The case in which the evidence was obtained is dismissed and then re-filed; or
- The judge in the other case is satisfied that the interest of justice outweighs any prejudice that would result to the party who disclosed the evidence.
In Loccident, the master determined that the third and fifth exception above applied to State Farm’s request for the plaintiff’s long-term disability discovery transcript. He explained that because “[t]he claims are overlapping and arise from the same accident,” State Farm had shown that the interest of justice outweighed any prejudice that would result from the plaintiff’s production of his discovery transcripts.
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Why Does Loccident Matter?
The ability of an accident-benefits insurer to obtain the discovery transcript from a long-term disability claim affects injured plaintiffs in two ways:
- The Deemed Undertaking Rule is meant to protect parties’ privacy even as they engage in the generally public litigation process. The exceptions to the rule strip that privacy protection when they apply.
- Pursuing different types of claims against different insurers will usually involve distinct issues and may entail different strategies. Making the discovery transcript from one case available to defendants in later cases forces the plaintiff to think ahead about his or her strategy in both cases. This might lead him or her to, for example, contest an issue that he or she would otherwise concede, potentially delaying resolution of the first case.
Ultimately, what Loccident shows is that injured Ontarians need to work with an experienced Ontario long-term disability and personal-injury lawyer from the outset with their legal claims. A lawyer can help the injured person develop a comprehensive strategy for dealing with all potential claims and pursue them effectively.