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Collateral use of expert reports

In Joubarne v. Sandes, 2008 BCSC 1542 Master Caldwell held that a medical report from a previous wrongful dismissal proceeding could not be used in a subsequent motor vehicle accident claim, but on appeal Williams J. held that the implied undertaking should be varied to allow use of the report in the subsequent action. The report was relevant to the motor vehicle accident claim because it dealt with issues including employment history, fitness and performance, and health issues:
 
In the present case, the discoveree is the plaintiff. Furthermore, the claim in the employment litigation encompassed issues including her employment history, fitness and performance in her employment, as well as health issues that may have impacted on her performance. In the present action, the plaintiff advances claims for loss of earnings and loss of capacity. She alleges that the accident resulted in her developing a driving anxiety and depression as well as loss of enjoyment of life and permanent physical disability. There is, as well, a temporal proximity.
 
In my view, it is reasonable to conclude that the examination for discovery transcript in the earlier proceeding is likely relevant to the issues in the personal injury action. Furthermore, in the circumstances, there is no bar at law to preclude those materials from production and the court has a discretion to relieve against the implied undertaking and to order disclosure.
 
(Joubarne v. Sandes, 2009 BCSC 1413 at paras. 25-26).
 
 
This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including representing claimants in motor vehicle accident claims, persons who have been denied insurance coverage by insurance companies, and persons dealing with builders lien issues.