Does information obtained in a lawsuit, stay in a lawsuit?
Typically, information disclosed in a legal proceeding cannot be used by the opposing party for any other purpose. When preparing plaintiffs for their examinations for discovery, we always remind them to be forthright and tell the truth. However, some plaintiffs fear that the information they share during their examination for discovery will be used against them outside of their lawsuit.
A common scenario we often see is if a plaintiff had a job where they received cash payments and did not declare the money on their income tax returns. Although employment income is important information to disclose in a personal injury lawsuit, plaintiffs worry that sharing this information can get them in trouble with the CRA. Thankfully, the Ontario Rules of Civil Procedure protect the way information is used in a legal proceeding.
Rule 30.1 of the Rules of Civil Procedure states that evidence that is obtained in a documentary discovery, examination for discovery, inspection of property, medical examination or in any examination for discovery by written questions cannot be used for any purpose other than those of the proceeding in which the evidence was obtained. This is known as the “deemed undertaking” rule.
However, there are exceptions to the rule. First, it is important to note that the deemed undertaking rule only applies to evidence that is obtained in the ways indicated above (Rule 30.1.01(2)). If the evidence comes to light in other ways, it is not protected. Furthermore, if the party that disclosed the information consents to it being shared, then the information is also not protected (Rule 30.1.01(4)).
Second, under Rule 30.1.01(5), the deemed undertaking rule does not apply if that evidence is filed with the court, or if the evidence is given or referred to during a hearing, or if the information is obtained from evidence referred to in court or during a hearing.
Third, Rule 30.1.01(6) does not prohibit the use of evidence obtained in one proceeding to impeach the testimony of a witness in another proceeding. Similarly, Rule 30.1.01(7) does not prohibit the use of evidence in a subsequent action.
Finally, under Rule 30.1.01 (8), if the court is satisfied that the interest of justice outweighs any prejudice that would result to the party who disclosed evidence, the court may order that the deemed undertaking rule not apply.
While there are exceptions to the deemed undertaking rule, information disclosed in a personal injury lawsuit is typically not used outside of the legal proceeding.
About the Authors
Merella is committed to advocating on behalf of people who have suffered serious personal injuries. She understands that the complexity of the insurance system can be intimidating for clients, and wants to make the process as easy as possible for them. Merella first joined Oatley Vigmond as an articling student in 2017, becoming an associate after being called to the bar in 2018. Merella obtained her law degree from the University of Windsor and an Honours B.A. in Philosophy and Criminology from York University. In her spare time, Merella enjoys exercising, travelling, and reading. Merella is fluent in Arabic.