ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RICHARD PANGBURN
Jerry F. O’Brien, for the Plaintiff
Plaintiff
- and -
GERALDINE LEEDER-KROYER
Carolyn Brandow, for the Defendant
Defendant
HEARD: May 13, 2003
HOCKIN J.
1The defendant moves under Rules 30.06 and 37 for production of correspondence from counsel for the plaintiff to counsel for the defendants in actions arising out of motor vehicle accidents in which the plaintiff was involved on September 4, 1985 and March 17, 1991.
2The plaintiff has been involved in five accidents: September 14, 1985, September 11, 1989, March 17, 1991, September 15, 1992, and December 13, 1995. The 1985 accident has been settled for $75,000 inclusive of costs and the claim arising from the 1991 accident has been settled for $450,000 plus costs.
3The defendant herein is the defendant in the action arising out of the September 16, 1989 accident. The position of the defendant is set out at paragraphs 8 through 13 of the affidavit of Mr. Ledroit, as follows:
- The plaintiff settled the 1985 and 1991 motor vehicle accidents as follows:
(a) 1985 MVA - $75,000 all inclusive;
(b) 1991 MVA – approximately $450,000 plus costs.
It is believed that a component of the settlements referred to above were in respect of economic loss, and in particular, past and future loss of income.\
The defendant in this action takes the position that there was no economic loss in respect of this motor vehicle accident and that any economic loss the plaintiff sustained was in relation to the 1985 and 1991 motor vehicle accidents.
The plaintiff may have claimed in the 1985 and 1991 motor vehicle accidents that all of his economic loss that existed at the time of the settlement of these actions was in relation to those accidents.
The trial of this action has been adjourned. The trial judge has ordered that the amount that the plaintiff received, in particular with respect to economic loss in the 1991 accident is relevant.
It would be unfair to permit the plaintiff to obtain double recovery.
4The defendant argues that because the settlement amounts and the trial releases only set out the figures settled for and do not contain any breakdown or basis of payment in terms of damages claimed by the plaintiff in the two settled actions that the plaintiff should produce all communications between counsel leading up to settlement to define what, if any amount, was included for economic loss. It was argued that:
The assertions as to the cause of any economic losses suffered by the plaintiff are relevant to the issue of causation of any economic losses suffered by the plaintiff in this action.
5The position of the plaintiff is set out at paragraphs 6 to 16 of the affidavit of Mary Jane Moynahan as follows:
The actions arising out of the first and third accidents have been settled and the amounts of those settlements and the associated release documents have been provided to counsel for the defendant.
The plaintiff agrees that the injuries and effects of the three accidents overlap and as a result of a global assessment of his overall damages and an apportionment between the three accidents will be required in the within action.
The plaintiff further agrees that the amounts paid in settlement of the first and third actions should be fully taken into account so that there is no double recovery.
The first and third motor vehicle accidents were settled on the basis of the acceptance of offers made by the defendants in the respective actions. There was no breakdown of the damages into various heads. However, the plaintiff agrees that the entire damage amount in each of the respective actions should be taken into account in the damages apportioned in the first and third accidents as a result of the global assessment in the pending action.
In the plaintiff’s Affidavit of Documents, he has asserted privilege with respect to the correspondence between his counsel, on his behalf, and defence counsel in the first and third actions.
Settlement negotiations in all three actions started as a result of a mediation and ADR Chambers on July 7, 1997. I have been advised by Jerry O’Brien and do verily believe that it was a term of the mediation that all parties agreed to treat the matters discussed therein as confidential.
Following the mediation, there was an exchange of various settlement proposals by counsel.
I have been advised by Jerry O’Brien and do verily believe that such documented communications were drawn on the basis of an expressed or implied understanding that they would be “without prejudice”.
Furthermore, I am advised by Jerry O’Brien and do verily believe that the said documentation is privileged, consisting of communications that were created for or communicated in the course of settlement negotiations, made by or on behalf of Mr. Pangburn, with an effort to resolve his claims out of the first and third accidents.
I am further advised by Jerry O’Brien and do verily believe that it is his opinion that such communications were made on the expressed or implied understanding that they would be without prejudice and therefore subject to a claim privilege
I am further advised by Jerry O’Brien and do verily believe that no prejudice will result to the defendant as a result of the dismissal of this motion nor double recovery will take place in light of the disclosed amounts in the other two actions.
6Counsel for the plaintiff indicated in the course of argument and in his Factum that if the order is granted, production will include particulars of settlement discussions in the California action (accident three), documents and statements made by counsel for the plaintiffs and the defendants in the California action at a mediation, exchanges of Minutes of Settlement, statements of the settlement position of the plaintiff and without prejudice communications made in the California action.
7In my view, the subject matter of the order sought is irrelevant. Mr. Pangburn’s various claims for damages for injury, which remain outstanding, will be quantified and apportioned based on his evidence of injury and the medical evidence of the plaintiff and the defendants. This will involve a global assessment according to the rule in Hicks v. Cooper (1974) 1 O.R. (2d) 121 for allocation between successive accidents and the multiple or contributory causes rule set out by Major J. in Athey v. Leonati [1996] 38 C.R. 458 and Cronk J.A. in Mizzi v. Hopkins (2003) C37587 (O.C.A.). His injury claim will be assessed and determined on the basis of such evidence. Representations of plaintiff’s counsel with respect to settlement could only be relevant if they amounted to admissions in this action. That is not the case. Although positions taken by counsel as a prelude to settlement may be a reflection of his view of the injury, it is only the trier’s view which counts and that view may only be guided by relevant evidence, that is the evidence of the plaintiff with respect to his pain and suffering and the medical evidence with respect to diagnosis, prognosis and causation. What plaintiff’s counsel’s view of the plaintiff’s claim for economic loss in the settled actions is, is not something which can be acted upon in the case of successive tort feasors. The defendant herein is not a joint tort feasor with the defendants who have settled.
8In this conclusion, I am encouraged by this statement from Wigmore on Evidence, cited at p. 808 of The Law of Evidence in Canada (2d edition), Sopinka, Lederman, Bryant:
That admissions in settlement negotiations are likely to be hypothetical or conditional only, as a supposition on which a settlement might rest, whether that supposition is true or false, and that admission has no relevance and is inadmissible on that ground.
The admissions made in the course of settlement negotiations may not be concessions of wrongs done, but merely an expression of a desire to purchase peace, and as such irrelevant and inadmissible.
9The figures settled for have been disclosed. How the sums settled for will be taken into account will be for the trial judge to decide. It is trite to say that the plaintiff may only recover what he has lost. He is not, in any particular action to be placed in a better position than his “original position” to borrow from Athey, supra. A correct global assessment and allocation to the second accident will produce a just result to this defendant. He will be called upon to pay no more or no less than what he has caused. Hicks and Cooper may require an assessment of the damages from accidents one and three. Whether the trial judge assesses the plaintiff’s loss from each at a figure above or below the figures settled for may, at the end, be of no interest to this defendant if the loss from his accident is fair and reasonable and reflects the evidence. In this event, this defendant may not fear a double recovery because he will have been called upon to pay only that which this trial judge decides is his responsibility. Whether the amounts already recovered may apply as a credit may depend on issues of causation or whether the double recovery consideration may only apply to joint for reasons and not successive tort feasors. This will be for the trial judge to decide.
10For reasons of public policy, in my view, privilege protects in any event. In cases of a plaintiff with multiple claims, he should be able to approach the settlement of each claim without the risk that the subject matter of the negotiation could later redound to the profit of an intractable defendant in the form of the disclosure of potentially prejudicial material at a trial. This is consistent with Waxman and Sons Ltd. v. Texaco Canada Ltd.,. v. Texaco Canada Ltd.[1968] 2. O.R. 452 (C.A.), affirming the decision of Fraser J. at 1968 178 (ON SC), [1968] 1 O.R. 642.
11The motion is therefore dismissed. If there is no agreement on costs, both as to scale and quantum, counsel may make submissions in writing within thirty days. Costs of course should follow the result. They are payable by the defendant to the plaintiff.
“Justice P. B. Hockin”
Justice P. B. Hockin
Released: November 28, 2003