Posted On: January 23, 2012 by John McKiggan

Exceptions to Implied Undertaking Rule and Confidentiality of Discovery Transcripts: Meuwissen v. Perkin

This month the Superior Court of Justice in Ontario released an interesting decision in a medical malpractice case Meuwissen v. Perkin. As a Nova Scotia medical malpractice lawyer, I found the case interesting because it deals with some unique issues of production that I have not run into in a medical malpractice claim in Nova Scotia or New Brunswick where I do most of my cases.

Implied Undertaking Rule

In Canada, we have what is known as the “implied undertaking rule”. What that means is there is an implied promise that information collected in the course of a lawsuit will not be disclosed to anyone who is not a party to the litigation.

One of the steps in the litigation process is conducting discovery examinations where the parties to a lawsuit are questioned, under oath, about everything they know that is relevant to the claim.

In Nova Scotia the rule was described by Justice Walter Goodfellow in Colby v. Ruiz, as follows:

"... implied undertaking rule means information obtained through oral or documentary disclosure in litigation, not otherwise independently obtainable through legitimate means, cannot be used for collateral or ulterior purposes absent the consent of the producing party or leave of the court."

The Supreme Court of Canada confirmed the existence of the rule in Juman v. Doucette. The Court also provided some helpful direction as to possible exceptions to the rule.

Balancing of Interests: Binnie J. wrote that “the onus in each case will be on the applicant to demonstrate a superior public interest in disclosure, and the court will be mindful that an undertaking should only be satisfied in exceptional circumstance”.

Statutory Exceptions: Binnie J. stated that the implied undertaking rule, can be modified by legislation.

Public Safety: If the facts disclosed during pre-trial discovery raise legitimate concerns for the safety of the public, the implied undertaking rule may be over ruled.

Impeaching Prior Inconsistent Testimony: The Supreme Court confirmed it's previous rulings to the efect that the implied undertaking of confidentiality may be set aside for the purposes of impeachment when a witness has given inconsistent versions of the same facts.

Meuwissen v. Perkin

In Meuwissen the plaintiffs filed a medical malpractice claim against Dr. Gary Perkin, a number of other doctors and the Strathroy Middlesex General Hospital, for serious injuries the infant plaintiff suffered during childbirth.

The plaintiffs alleged Dr. Perkin had a history of violating hospital guidelines regarding the use of forceps, cesarean sections and had repeatedly breached professional standards for obstetric care.

Dr. Perkin had previously been sued by a number of other plaintiffs for similar claims involving birth injuries during the same time frame that the infant plaintiff was injured.

The plaintiffs sought an order requiring production of the discovery transcripts from the five other lawsuits against Dr. Perkin.

The defendants that objected to production on the basis that, if the order were granted, the plaintiffs would “have available to them a much broader range of pretrial discovery than would normally be the case”.

The court considered the previous discovery examinations to be relevant in part because the plaintiffs had alleged systemic negligence on the part of Dr. Perkin and the other defendants.

The court ruled, at paragraph 94:

The case involves significant claims for damages and the alleged injuries to the infant plaintiff cannot be ignored. The facts in two of the three other actions arise out of similar facts to this action. For the above reasons, I am ruling in favor of production of all of the transcripts of examinations for discovery in the other three actions. To rule otherwise may prejudice the plaintiffs in that they could be deprived of proceeding to trial without valuable evidence that could possibly bolster their case.


The court weighed the competing interests of protecting the privacy interests of parties from unwanted intrusion versus ensuring that parties to litigation are provided with all relevant information.

Unusual Circumstances

I think it is fair to say that in most cases negligent acts by doctors, nurses and hospitals are isolated incidents that do not form part of a pattern of misconduct.

However, as the Meuwissen case clearly shows, there may be cases where defendants are guilty of a pattern of misconduct or systemic negligence that continues until the parties are held to account and forced to address their negligent misconduct.

The Meuwissen decision shows that negligent defendants who persist in a pattern of misconduct will not be able to hide their repeated negligent actions behind the secrecy of the implied undertaking rule.

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