Moore et al. v. Bertuzzi et al.

[Indexed as: Moore v. Bertuzzi]

110 O.R. (3d) 611
2012 ONSC 3248

Ontario Superior Court of Justice

Perell J.
June 4, 2012

Civil procedure -- Discovery -- Privilege -- Settlement privilege -- Defendants and third party entering into settlement agreement that resulted in consensual dismissal of cross-claims between defendants and third party claim -- Agreement providing for specified percentage apportionment and payment by defendants and third party of any monetary award made at trial or any settlement with plaintiff -- Plaintiff entitled to production of settlement agreement -- Exceptions to settlement privilege not confined to circumstances of Mary Carter agreements and Pierringer agreements -- Agreement changing landscape of litigation -- Court entitled to information about change in adversarial orientation of parties from moment that change occurs.

The plaintiff, who then played for the Colorado Avalanche Hockey Club in the National Hockey League, was seriously injured when he was hit from behind by the defendant B, who then played for the Vancouver Canucks. The plaintiff sued B, and also sued the owners of the Canucks (the "Orca Bay defendants"), pleading that the Orca Bay defendants were not only vicariously but also directly liable for B's actions as management had encouraged players to effect retribution against the plaintiff for an earlier attack on a Vancouver player and had failed to take reasonable measures to prevent violence against the plaintiff. B and the Orca Bay defendants issued cross-claims against each other for contribution and indemnity. B issued a third party claim against C, the Vancouver head coach at the relevant time, pleading that C had urged B and other players to make the plaintiff "pay the price" for the earlier attack and that it was a term of his employment that he take direction from C. B claimed contribution and indemnity against C for any judgment awarded against him. Without notice to the plaintiff, the defendants and the third party entered into a settlement agreement that ultimately resulted in the consensual dismissal of the cross-claims and the third party claim. The plaintiff brought a motion to compel production of the settlement agreement. The defendants resisted production on the basis of settlement privilege. The motion was granted. The defendants appealed.

Held, the appeal should be dismissed.

The master was correct in ordering the disclosure of the settlement agreement. The result was the same regardless of whether settlement privilege is a class privilege or a case-by- case privilege: the defendants were disqualified from asserting privilege for their settlement agreement. Exceptions to settlement privilege are not confined to the circumstances of Mary Carter agreements and Pierringer agreements. The court needs to understand the precise nature of the adversarial orientation of the litigation to maintain the integrity of the process, which is based on a genuine, not a sham, adversarial system. Information about a change in the adversarial orientation must be disclosed to the non-settling parties and the court from the moment it occurs. There was no reason not to disclose the complete details of the proportional sharing between the settling defendants.

While it was unnecessary to decide the issue in the circumstances of this case, the better view is that settlement privilege is a class or categorial privilege and not a case-by- case privilege.

APPEAL from an order compelling the production of a settlement agreement.

Cases referred to
Pettey v. Avis Car Inc. (1993), 1993 9392 (ON SCDC), 13 O.R. (3d) 725, [1993] O.J. No. 1454, 103 D.L.R. (4th) 298, 18 C.P.C. (3d) 50, 41 A.C.W.S. (3d) 44 (Gen. Div.), apld
Aecon Buildings, a Division of Aecon Construction Group Inc. v. Brampton (City), [2010] O.J. No. 5630, 2010 ONCA 898, 328 D.L.R. (4th) 488, 98 C.L.R. (3d) 1 [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 84]
Brown v. Cape Breton (Regional Municipality), [2011] N.S.J. No. 164, 2011 NSCA 32, 302 N.S.R. (2d) 84, 331 D.L.R. (4th) 307
Noonan v. Alpha-Vico, [2010] O.J. No. 2807, 2010 ONSC 2720, 99 C.P.C. (6th) 266 (S.C.J.-Master)
Ontario (Liquor Control Board) v. Magnotta Winery Corp. (2010), 102 O.R. (3d) 545, [2010] O.J. No. 4453, 2010 ONCA 681, 270 O.A.C. 55, 325 D.L.R. (4th) 33, 9 Admin. L.R. (5th) 269, affg (2009), 97 O.R. (3d) 665 (Div. Ct.)
Pierringer v. Hoger, 124 N.W. 2d 106, 21 Wis. 2d 182 (1963), consd

Other cases referred to
Bodnar v. Home Insurance Co., [1987] O.J. No. 2365, 25 C.P.C. (2d) 152 (H.C.J.-Master)
Booth v. Mary Carter Paint Co., 202 So. 2d 8 (Fla. 1967)
Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, [2005] B.C.J. No. 5, 2005 BCCA 4, 249 D.L.R. (4th) 416
I. Waxman & Sons Ltd. v. Texaco Canada Ltd., [1968] 1 O.R. 642 (H.C.J.), affd [1968] 2 O.R. 452 (C.A.)
Inter-Leasing Inc. v. Ontario (Minister of Finance), [2009] O.J. No. 4714 (Div. Ct.)
IPEX Inc. v. AT Plastics Inc., [2011] O.J. No. 3636, 2011 ONSC 4734
J. & M. Chartrand Realty Ltd. v. Martin, [1981] O.J. No. 739, 22 C.P.C. 186 (H.C.J.)
Johnstone v. Locke, [2011] O.J. No. 5527, 2011 ONSC 7138 (S.C.J.)
Kennedy v. McKenzie, [2005] O.J. No. 2060 (S.C.J.)
Laudon v. Roberts, [2009] O.J. No. 1824, 2009 ONCA 383
Leadbeater v. Ontario (2004), 70 O.R. (3d) 224 (S.C.J.)
Leadbeater v. Penncorp Life Insurance Co., [1999] O.J. No. 496 (Gen. Div.)
Meyers v. Dunphy, [2007] N.J. No. 5, 2007 NLCA 1
Middelkamp v. Fraser Valley Real Estate Board, [1992] B.C.J. No. 1947 (C.A.)
Moore v. Bertuzzi (2012), 110 O.R. (3d) 124, 2012 ONSC 597 (S.C.J.)
Pirie v. Wyld (1886), 11 O.R. 422
R. v. McKinnon, [2010] O.J. No. 3001, 2010 ONSC 3896 (Div. Ct.)
Rush & Tompkins Ltd. v. Greater London Council, [1989] 1 A.C. 1280 (H.L.)
Sable Offshore Energy Inc. v. Ameron International Corp., [2011] N.S.J. No. 687, 2011 NSCA 121
Slavutych v. Baker, [1976] 1 S.C.R. 254
SNC-Lavalin Profac Inc. v. Sankar, [2007] O.J. No. 1966 (S.C.J.-Master)
Unilever plc v. Proctor & Gamble Co., [2001] 1 All E.R. 783
Williams v. Douglas, [2003] O.J. No. 2435 (S.C.J.-Master)
Wong v. Second Cup Ltd., [2006] O.J. No. 3299 (S.C.J.-Master)
York (County) v. Toronto Gravel Road and Concrete Co. (1882), 3 O.R. 584 (Ch.)
Zeitoun v. Economical Insurance Group (2009), 96 O.R. (3d) 639, 2009 ONCA 415

Statutes referred to
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31

Authorities referred to
Perell, Paul M., "The Problems of Without Prejudice" (1992), 71 Can. Bar Rev. 223
Vaver, David, "'Without Prejudice' Communications -- Their Admissibility and Effect" (1974), 9 U.B.C. L. Rev. 85

Tim Danson, for plaintiffs.
Geoffrey D.E. Adair, Q.C., for defendant Todd Bertuzzi.
Alan D'Silva, for defendants Orca Bay Hockey Limited Partnership and Orca Bay Hockey, Inc., dba The Vancouver Canucks Hockey Club, Vancouver Canucks Limited Partnership and Vancouver Hockey General Partners Inc.

PERELL J.: -- A. Introduction

[1] This appeal from a master's decision raises the question of when, if at all, a settlement agreement that would normally be protected by the privilege for without prejudice settlement communication must be disclosed to the court and to the adverse parties.

...

[118] For the above reasons, I dismiss the appeal.

[119] If the parties cannot agree about the matter of costs, they may make submissions in writing, beginning with the Moores, within 20 days of the release of these reasons for decision, followed by the defendants' submissions within a further 20 days.

Appeal dismissed.