CITATION : Moore v. Bertuzzi, 2012 ONSC 1350

COURT FILE NO.: 06-CV-306081

SUBMISSIONS HEARD : February 27, 2012-02-27

ADDENDUM RELEASED : February 28, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STEVE MOORE, JACK MOORE and ANNA MOORE v. TODD BERTUZZI, ORCA BAY HOCKEY LIMITED PARTNERSHIP, ORCA BAY HOCKEY, INC. dba THE VANCOUVER CANUCKS HOCKEY CLUB, VANCOUVER CANUCKS LIMITED PARTNERSHIP and VANCOUVER HOCKEY GENERAL PARTNERS INC.

BEFORE: Master R. Dash

COUNSEL: Timothy Danson and Marjan Delavar, for the plaintiffs

Geoffrey Adair, for the defendant Bertuzzi

Alan D’Silva, for the Orca Bay defendants

ADDENDUM

[ 1 ] This addendum to my reasons dated February 15, 2012 is to address concerns raised by the defendants that paragraphs 83 and 84 of those reasons impugn the professional reputation of the lawyers that appeared before me on January 4, 2012. Paragraphs 20, 21 and 81 to 84 of the reasons reference an earlier motion I heard on January 4, 2012 brought by the defendants for two neuropsychological examinations, one to be conducted on behalf of the defendant Bertuzzi and one on behalf of the defendant Orca Bay. I found that such motion provided one example of how the settlement agreement changed the landscape of the litigation and why it ought to have been disclosed. The defendants’ lawyers requested this hearing not to re-argue the January 23 rd motion or to vary the operative part of the February 15 th order, but to have me consider issuing supplementary reasons to clarify that there was no advertent or inadvertent attempt to mislead the court on January 4 th by failing to disclose the agreement.

[ 2 ] Let me start by saying without any hesitation that I have nothing but the highest regard for the professionalism and integrity of all of the lawyers involved in this action and in particular Geoffrey Adair and Ellen Snow, the defendants’ lawyers who appeared before me on January 4 th . I did not mean to imply by my reference to provisions of the rules of professional conduct and the principles of professionalism for advocates that those lawyers acted unprofessionally or that the failure to disclose the settlement agreement amounted to misconduct. I referenced those provisions to emphasize the importance of disclosure of the type of agreement that was signed by the defendants in this action so that there would be no possibility that the court might harbour any misapprehension as to which parties were adverse in interest.

[ 3 ] Although stated in my reasons of February 15, 2012, I again repeat that none of the lawyers appearing on January 4 th stated explicitly nor implied that there was continuing adversity as between Bertuzzi and Orca Bay. Nonetheless adversity between those defendants had ended a number of months earlier when an agreement was signed that included provisions not to proceed with crossclaims against each other and to apportion liability in set percentages. I accept that none of the lawyers intentionally set out to mislead the court, either by advertence or inadvertence. The defendants state that they considered the ethical dilemma whether the agreement ought to be disclosed but determined that it not be disclosed for two reasons. They were of the view firstly, that the agreement had no relevance to the issue before me and secondly, that they were constrained from revealing the agreement because it was a privileged document and they were duty bound to protect their clients’ privilege. In my view however the agreement was relevant to the motion. If disclosed it would have permitted the plaintiffs to make submissions as to the effect of the agreement on the right to two neuropsychological examinations and would have been a consideration by me in the determination of the motion, although not necessarily decisive of the motion. In my view it was also not privileged, for reasons set out in some detail in my February 15 th endorsement. The determination by the defendants not to disclose the agreement therefore was an honest decision made in good faith, but it was a mistaken decision. Of course, if an appeal court takes a different view, then their decision not to disclose would have been both honest and correct.

[ 4 ] I held in my February 15 th endorsement that the commonality of interests on liability would have been a factor in my decision on January 4 th to permit two neuropsychological examinations but the result would not necessarily have been different. This is not the time to address what the result would have been if disclosure had been made. The time to argue that will be on the plaintiffs’ upcoming motion to set aside the January 4 th order for two neuropsychological examinations.

[ 5 ] The defendants point out that the only submissions made by the plaintiffs’ lawyer on January 4 th in opposition to two neuropsychological examinations was that the defendants had a common interest on the issue of damages and that I permitted two examinations despite the common interest on the issue of damages. The plaintiffs’ lawyer however was unable to argue an absence of adversity or common interest on liability since he was unaware that the defendants had agreed to a dismissal of the crossclaims. I granted the two examinations despite the common interest on damages because I was under the misapprehension that the defendants remained adverse on liability due to the crossclaims and thus had separate interests to protect. Indeed I stated clearly in open court that both defendants had separate interests to protect and this was not corrected. While in my view defendants’ counsel should have been alerted to my apprehension by the discussions during the hearing of the motion, I accept Mr. Adair’s submission that he failed to appreciate the significance of the court’s comments on separate interests and was therefore unaware of my misapprehension or of my belief that continuing adversity on liability was relevant to the motion.

[ 6 ] The defendants suggest that it would have been preferable if the plaintiffs’ disclosure motion had proceeded before the defendants’ motion for two neuropsychological examinations as the court would have had the benefit of seeing the agreement and the problem would have been avoided. That of course was not possible since there was urgency in completing the neuropsychological examination motion on January 4 th because of the pending experts’ attendance in Ontario to conduct the examinations. In any event no-one suggested that the disclosure motion be heard first. Of course the problem could also have been avoided if the defendants’ motion to dismiss the crossclaims had been before the courts on January 4 th , rather than disclosed just prior to the January 23 rd hearing date.

[ 7 ] The defendants also suggest that my decision on the motion may have been influenced as a result of the plaintiffs’ lawyer sending me, while the disclosure motion was under reserve, a letter requesting a date for a motion to set aside the January 4 th order for two neuropsychological examinations in which he enclosed a copy of his motion record. There is no foundation to the defendants’ suspicion. It is correct that the plaintiffs’ lawyer should not have sent me the request, especially with a copy of the motion record, while the disclosure motion was under reserve, although I do not impugn his motives in so doing. Once I received the letter requesting the motion I had my assistant call Mr. Danson to tell him that it would not be appropriate to deal with or set a date for his motion until after I released my reasons on the disclosure motion. I did not read the plaintiffs’ motion record accompanying the letter until after I had signed the reasons and directed that they be forwarded to the parties. Mr. Danson’s letter had no impact on my decision or on my reasons.

[ 8 ] I conclude by repeating that in my view the defendants’ lawyers on January 4, 2012 did not set out to deliberately mislead the court and that they held a genuine, but mistaken, belief that the agreement to end adversity was not relevant to the motion to compel the plaintiff to undergo two neuropsychological examinations and that it was protected by settlement privilege. It is not the intentions or the motives of the lawyers in failing to disclose that is in issue, but rather the effect of the non-disclosure on the January 4 th motion. This further demonstrates why disclosure of such agreements is necessary immediately after they are signed as stated by the Court of Appeal in Aecon Buildings v. Brampton . Such disclosure would have relieved the defendants from having to decide whether the court would consider the agreement relevant for the particular motion.

Master R. Dash

DATE RELEASED: February 28, 2012