DARLING v EWANCHUK

In this Application, the Defendants sought an Order compelling the Plaintiff to answer certain undertakings taken under advisement at Questioning (the "Undertakings"), as well as production of unredacted copies of records that had been produced by the Plaintiffs in response to other undertakings (the “Redacted Records”). The Application proceeded by way of Desk Application, pursuant to Rule 6.9(1), with both parties providing Briefs.

The Court reviewed Rule 5.2, directing that parties answer questions and produce documents that are relevant and material, as well as the principles governing disclosure set out in Rule 5.1. Turning to Rule 5.30, Justice Mandziuk confirmed that a person being questioned who has a relevant and material record under their control must undertake to produce that record within a reasonable amount of time.

Justice Mandziuk briefly commented on the meaning and effect of undertakings taken "under advisement", as were the Undertakings here. The Court referenced case law which described an undertaking under advisement as substantially a refusal of an undertaking, with a connotation that counsel representing the witness is not certain of the validity of the objection and will give it further thought.

Justice Mandziuk held that the undertakings were relevant and material and should be produced. The Plaintiff’s health was at issue in the underlying personal injury Action and the undertakings were for medical records. The Plaintiff insisted that they could not locate the documents sought in the undertakings or they did not exist. The Court said that all reasonable efforts should be made to produce the documents. If they could not be found, the Court would have to address the non-disclosure through other means, such as adverse inferences, credibility findings, or Cost consequences.

As for the Redacted Records, the Court ordered production of unredacted copies pursuant to Rule 5.11. Justice Mandziuk referred to the applicable test for redactions: (1) that the redacted information is clearly irrelevant, (2) that the benefit of the redaction outweighs any costs caused by the redaction, and (3) that the redaction is sufficiently unconnected to the rest of the record so that the redaction does not render the record misleading or more difficult to understand. Applying the test, the Court held that the redacted information related to the purpose of hospital visits by the Plaintiff. Since the Plaintiff's health was in issue, the Defendants needed to know why the Plaintiff attended the hospital. The Application was therefore granted.