



COURT OF APPEAL FOR ONTARIO

CITATION:
Bluewater
    Health v. Kaila, 2012 ONCA 629

DATE: 20120921

DOCKET: C55405

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Bluewater Health

Applicant (Respondent)

and

Dr. Sanjeev Kaila

Respondent (Appellant)

C. Kuehl, for the appellant

Paula A. Trattner and Aislinn Reid, for the respondent

Heard and released orally: September 19, 2012

On appeal from the judgment of Justice Carey of the Superior
    Court of Justice, dated March 30, 2012.

By the Court:

[1]

The appellant, Dr. Kaila, appeals the order of the application judge
    that rule 30.1.01(3), the deemed undertaking rule, does not apply to the
    Affidavit of Dr. Rajiva Singh, dated March 2, and the exhibits thereto.

[2]

The background of this matter is, briefly, as follows.

[3]

The appellant commenced an action against the respondent hospital,
    Bluewater Health, in 2008, alleging breach of the agreement governing their
    relationship. The parties attended a mediation, but were unsuccessful in
    resolving the issue. It was evident that the lack of documentary evidence of complaints by the appellant to the hospital was a
    weakness in his case.

[4]

Ten days after the mediation, the appellant produced two new e-mails
    that he intended to use at trial. Both e-mails detail complaints made to other
    medical staff at the hospital before the action was commenced. Suspicious as to
    the authenticity of the e-mails, the hospital commenced an investigation, and
    ultimately obtained an affidavit from Dr. Rajiva Singh, one of the alleged
    recipients of the e-mails. In the affidavit, Dr. Singh stated that he had no
    independent recollection of having received the e-mails, and did not have the
    e-mail address attributed to him at the time the e-mails were purportedly sent
    and received. The e-mails are exhibits to his affidavit.

[5]

Soon after, the parties settled.

[6]

Subsequently, the appellant applied for re-appointment to the hospitals
    professional medical staff. The hospitals Medical Advisory Committee (MAC) was
    aware that the hospital doubted the authenticity of the e-mails that had been produced
    in the action by the appellant, but did not have a copy of Dr. Singhs
    affidavit.  The MAC recommended to the hospitals Board that the appellant be
    re-appointed.  The Board referred the matter back to the MAC for
    reconsideration at a special MAC meeting. Prior to the meeting, the appellants
    counsel was advised of the list of documents that would be considered, which
    included Dr. Singhs affidavit. Counsel for the appellant objected, and the
    meeting was adjourned pending a court determination of whether the deemed
    undertaking rule applied to the affidavit, and if so, whether relief would be
    granted.

[7]

Rule 30.1.01 (3) of the
Rules of Practice
provides that all
    parties and their lawyers are deemed to undertake not to use evidence or
    information to which the Rule applies for any purposes other than those of the
    proceeding in which the evidence was obtained. Subrule (1) provides that the
    Rule applies to, among other things, evidence obtained under Rule 30
    (documentary discovery).

[8]

We assume for the purpose of this appeal that the deemed undertaking
    rule applied to the e-mails produced by the appellant.

[9]

Subrule 30.1.01(8) provides as follows:

If satisfied that the interest of justice outweighs any
    prejudice that would result to a party who disclosed evidence, the court may
    order that subrule (3) does not apply to the evidence or to information
    obtained from it, and may impose such terms and give such directions as are
    just.

[10]

The
    application judge concluded that if the deemed undertaking rule applied, the respondent
    should be exempted from its application pursuant to subrule 30.1.01 (8). He
    determined that the interest of justice in denouncing the unethical fabrication
    of evidence, if in fact it did occur, outweighed any prejudice from the
    disclosure of the e-mails. The application judge noted that the exchange in the
    e-mails at issue concerns the same parties as before the court, their content
    is benign, and, if authentic, they do not relate to any private or
    confidential matters between the parties.

[11]

In
Juman v. Doucett
, [2008] SCJ No. 8 (S.C.C.), the Supreme Court of
    Canada considered when relief should be given against deemed undertakings.   Binnie
    J., writing for the court, observed, at para. 35, that,  where discovery
    material in one action is sought to be used in another action with the same or
    similar parties and the same or similar issues, the prejudice to the examinee
    is virtually non-existent and leave will be generally granted.

[12]

Here,
    the same parties are involved and the issue is again the relationship between
    those parties. Moreover, the e-mails at issue are allegedly an exchange between
    those very parties. The appellant has no privacy interest in the e-mails, and
    there is no prejudice to him.

[13]

The
    appellants suggestion that the hospital was somehow seeking to use the
    affidavit for an improper purpose is not supported by the evidence.

[14]

A
    decision to grant relief from the deemed undertaking rule entails an exercise
    in discretion. In our view, on these facts, the application judge properly
    concluded that his discretion should be exercised to order that the deemed
    undertaking rule does not apply to prohibit the provision of Dr. Singhs
    affidavit to the MAC.

[15]

The
    appeal is accordingly dismissed.

[16]

Costs
    of the appeal are awarded to the respondents in the amount of $10,000,
    including taxes and disbursements.

D. Doherty J.A.

Alexandra Hoy J.A.

S.E. Pepall J.A.


