Can a defendant in a personal injury action make use of a medical report and clinical report obtained from an earlier and by then settled wrongful dismissal action?

British Columbia, Canada


The following excerpt is from Wright v. Thomas, 2012 BCSC 2021 (CanLII):

In this jurisdiction, Williams J. allowed the defendant in a personal injury action to make use of a medical‑legal report and clinical records obtained by the plaintiff in an earlier and by then settled wrongful dismissal action. The report and records were those of the plaintiff's treating psychiatrist. The plaintiff alleged in her personal injury action to have suffered from, among other things, anxiety and depression as a result of the defendant's negligence: Joubarne v. Sandes, 2009 BCSC 1413 (CanLII).

Whether the implied undertaking rule even applies in this case might be in doubt. In Cochrane v. Heir, 2011 BCSC 477, the court ruled that a plaintiff must provide records obtained in a previous personal injury action as part of disclosure obligations under Rule 7‑1. Furthermore, one might query whether evidence disclosed at a public trial and now part of a public record is subject to the implied undertaking rule. The underlying purpose of the implied undertaking rule is to protect the privacy of an individual who is compelled to disclose certain information in the pre‑trial process.

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