In Guindon v. VIA Rail, an interesting (but unusual) case, Master Robert Beaudoin ordered that ViIA Rail was not bound by the deemed undertaking rule (Rule 30.1) where the plaintiff had uttered threats in the course of an independent medical examination arranged by VIA.
VIA had retained a neuropsychologist to examine the plaintiff. Medical examinations are a form of discovery under the Rules and Rule 30.1 applies to them. Subrule 30.1.01(3) provides that “all parties and their counsel are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.”
According to the neuropsychologist, the plaintiff “made statements about getting ‘revenge’ if he does not get what he wants in his lawsuit, relating that he would kill a police officer or blow up or derail a train (by cutting through a rail) ‘killing 500 people’, and then commit suicide. He reiterated these threats on questioning.” VIA asked the Master to relieve it of its deemed undertaking so that it could alert the authorities. The motion was opposed by counsel for the plaintiff.
The Master granted VIA’s motion, holding that, in this case, public safety issues trumped the privacy rationale of Rule 30.1, such that VIA was free to disclose the statements made by the plaintiff to the neuropsychologist.