Cormack-Terrelonge v. Fahmy Estate, 2018 ONSC 3925 (CanLII)

Production of prior discovery transcripts where there may be overlapping injuries.  

Date Heard: March 23, 2018 | Full Decision [PDF]

The plaintiff was injured in a 2014 motor vehicle accident.  At discoveries, it was revealed that the plaintiff had been injured in three prior MVAs, and had sued over each MVA.  Plaintiff’s counsel refused to provide an authorization for the defendant to obtain the discovery transcripts produced in the earlier actions.

The defendant sought production of the earlier transcripts by relying on the legislated exception to the deemed undertaking rule (30.1.01(6)), which reads:

Subrule (3) does not prohibit use of evidence obtained in one preceding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding.

The plaintiff argued that the defendant had not provided sufficient grounds to engage the exception.  It argued defendant was engaging in a fishing expedition, and to produce the transcripts would cause prejudice.

According to the Court, the prior transcripts were caught by the deemed undertaking rule.  Therefore, they could not be produced without judicial approval.  The transcripts could only be produced if the interests of justice outweighed any potential prejudice.

The plaintiff was unclear about the nature of her prior injuries.  It was unclear, based on the plaintiff’s discovery evidence, whether her earlier injuries were different from those sustained in the 2014 MVA, and whether her prior injuries had resolved.  The Court ordered the prior transcripts produced.  It wrote:

Given the evidence of the plaintiff at discovery, concerning the injuries sustained in the 2010, 2012, and 2014 motor vehicle accidents, the resolution if any of those injuries, even with the benefit of documentary medical production provided, is not clear. There is no credible evidence to suggest that the injuries sustained in the previous actions resolved prior to the motor vehicle accident on January 5, 2014.

I find production of the transcripts from the examinations for discovery the plaintiff conducted in Action CV-12-449448 and Action 8982-14, is necessary to assess the extent to which the plaintiff’s current complaints overlap with her injury complaints prior to the January 5, 2014 accident. The production of these discoveries is not a fishing expedition as submitted by the plaintiff.


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Jordan Kofman
Written by

Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.