In the Superior Court matter of Cormack-Terrelonge v. Fahmy Estate , the plaintiff was involved in a motor vehicle accident. At examinations for discovery, the plaintiff testified that she had been involved in three motor vehicle accidents prior to the subject accident. The plaintiff testified that she had sustained injuries in all three preceding accidents and had commenced litigation in relation to each accident.
The defendant requested the transcripts from the prior examinations for discovery. However, the plaintiff refused the request. The defendant argued that the transcripts were necessary to assess the extent to which the plaintiff’s current complaints overlap with her injury complaints prior to the subject accident. It was noted that there was no credible evidence to suggest that the injuries sustained in the prior accidents had resolved before the subject accident.
Justice Sosna agreed that although the prior transcripts were captured by the deemed undertaking rule set out at Rule 30.1.01(3), the exception to the undertaking rule applied in this case as the interest of justice outweighed any prejudice that would result to a party who disclosed the evidence. Justice Sosna concluded that the production of relevant and necessary documents was required to ensure that the case was ultimately and fairly adjudicated at trial.
https://www.canlii.org/en/on/onsc/doc/2018/2018onsc3925/2018onsc3925.html?platform=hootsuite
