In June 2016, Mark Rogers appeared before the Court of Appeal in Unifund Assurance Company v. Churchill to respond to an appeal by an Auto Insurance Company. In this matter, Mark argued that the Insurance Company’s request for disclosure of Independent Medical Reports from previous court proceedings had been properly denied at the Trial Division level on the basis of the Implied Undertaking Rule.
Independent Medical Reports are created when Insurance Companies force an injured person to submit to an Examination by a doctor of the Insurance Company’s choosing. In this case, the Auto Insurance Company was asking the Court to force Mark’s client to disclose any such reports that may exist from other legal matters.
The Implied Undertaking Rule is a fundamental principle of the laws of civil procedure and is meant to apply without the need for a request of the parties or an application to Court. According to this Rule, it is implied that each party involved in a court proceeding has agreed to not use any information or documents disclosed during that proceeding for some other purpose outside of that proceeding. The Rule applies regardless of whether that information or documents may have relevance to other legal matters, so long as it is not used at Trial. The rationale for the Implied Undertaking Rule is to protect the privacy of both parties and encourage settlement discussions.
Unfortunately, in Unifund Assurance Company v. Churchill our Court of Appeal determined that the Implied Undertaking Rule should never apply to Independent Medical Reports. Mark strongly believes in the importance of privacy for all of his clients, especially when it comes to medical information the client had no choice but to disclose. Therefore, in early 2017 Mark has asked the Supreme Court of Canada for leave to apply to have the decision of the Court of Appeal overturned.