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Burwash v. Levy et al. 2018 ONSC 682

The plaintiff was injured in a motor vehicle accident and commenced two actions: one against her SABS provider and one in tort against the other driver. After settling the SABS action and in the course of the tort action, the plaintiff sought various documents from an independent medical assessment service provider, which was not a party to either action.

After the SABS action was settled, defence counsel in the tort action served a notice stating that he might call as witnesses at trial, many of the health care providers who assessed the plaintiff for her SABS insurer in addition to those experts who provided reports in the tort action.  After being threatened with a motion, the medical assessment provider produced all of the documents which they believed were relevant to the tort action (“Non Ordered Documents”).

The plaintiff was not satisfied and sought and obtained an order for production of all documents the medical assessment provider had in their possession that related to the plaintiff.  Pursuant to the terms of the order, the assessment provider produced 7 volumes of documents (the “Ordered Documents”).  The plaintiff subsequently settled the tort action, after the trial had started, but before the first witness had been called. Plaintiff’s counsel then used the information contained in the Ordered Documents to frame and commence an action against the medical assessment provider, three of the healthcare providers who assessed her for the SABS insurer, and a previous medical assessment provider, as well as individual officers of both medical assessment providers.

The medical assessment provider, retained Brian Elkin and Paul Mooney of Bertschi Orth Solicitors and Barristers LLP (“BOS LAW”). BOS LAW brought a motion to strike the plaintiff’s claim or alternatively, to prohibit the plaintiff from using any of the Ordered Documents. The BOS LAW lawyers argued that the plaintiff had breached the deemed undertaking rule, set out in Rule 30.1 of the Ontario Rules of Civil Procedure. Counsel for the plaintiff brought a cross-motion to be relieved of the deemed undertaking rule and to allow the plaintiff to use all of the documents obtained from the medical assessment service provider.

Rule 30.1 provides that all parties and their counsel are “deemed to undertake” not to use evidence and information obtained during a proceeding for any purposes other than those of the proceeding in which the evidence or information was obtained. The common law deemed undertaking rule was recognized as applicable in Ontario by the Ontario Court of Appeal in Goodman v. Rossi (1995) 24 O.R. (3d) 359. The leading case in Canada is the 2008 Supreme Court of Canada’s decision in Juman v. Doucette 2008 SCC 8.

The court agreed with the argument advanced by the BOS LAW lawyers. Justice Hackland held that the plaintiff in Burwash v. Levy et al., breached the deemed undertaking rule with respect to the Ordered Documents and prohibited their use in the subsequent action. Justice Hackland also found that the Non Ordered Documents were produced voluntarily and therefore they were not subject to the deemed undertaking rule.

In his decision, Justice Hackland made the following findings:


  • the plaintiff did not inform the motions judge that she intended to commence an action against the service provider, when she obtained the order for the Ordered Documents;
  • plaintiff’s counsel was aware that the Ordered Documents attracted the protection of the deemed undertaking rule;
  • the plaintiff’s subsequent reliance on the information contained in the Ordered Documents to commence the action as against the assessment provider was a clear breach of the deemed undertaking rule;
  • by listing the Ordered Documents in her affidavit of documents, the plaintiff committed a further breach of the deemed undertaking rule.

Most importantly, in disallowing use of the Ordered Documents, Justice Hackland confirmed:

i.   plaintiffs bear the onus to satisfy the court that they should be relieved of their obligations under the deemed undertaking rule;

ii.   confidentiality is part of the DNA or the fabric of the deemed undertaking rule. It arises from the compulsion that lies upon a party or a non-party compelled to submit to discovery. It has nothing to do with whether the documents or information disclosed through discovery were confidential in nature;

iii.  protection under the deemed undertaking rule applies irrespective of whether the documentation or information could have been, but was not, obtained through different sources or means;

iv.  the deemed undertaking rule is an important guarantor of the integrity of our pre-trial disclosure process. It regulates the conduct and the expectations of litigants and it provides a limited but important protection to non-litigants who are brought into the court process; and,

v.   the effective functioning of the litigation system is promoted by participants having confidence that the documentation and information they are forced to provide will not be used against them in subsequent proceedings. This applies with even greater force when a third party being compelled to produce documents in a proceeding in which they have no direct interest.

This case is an important reminder to counsel and to litigants that they should be very careful when using documents obtained though discovery.  A party or counsel who wish to use documents or information obtained through discovery in another proceeding should tread very carefully!

Counsel for a non-party, when asked to submit to any form of discovery under Ontario Rule 30.10 (discovery of non-parties), or its equivalent in other jurisdictions, should insist on an “Order” even when their client is willing to produce documents or answer questions orally. It is necessary to do so in order to have the protection afforded by the deemed undertaking rule.

If a party engaged in a proceeding decides that they will subsequently sue a third party, they should not seek discovery of that third party in the initial ongoing action. The proper course of action is to bring a subsequent action and obtain the documents and information through the normal discovery process in that subsequent action.  To do otherwise could mean that a party may be restricted partially or entirely from using important documents and information unless they took proactive steps under Rule 30.1 to be relieved of their obligations under the deemed undertaking rule.

If a party requires information from a non-party to a proceeding and they decide to sue that non-party thereafter, they should disclose their intention to the court when seeking an Order to compel discovery of the non-party.



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