COURT FILE NO.: 06-CV-306081PD3

DATE: 2012-09-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEVE MOORE, JACK MOORE AND ANNA MOORE

Plaintiffs

– and –

TODD BERTUZZI, ORCA BAY HOCKEY LIMITED PARTNERSHIP AND ORCA BAY HOCKEY, INC. cob THE VANCOUVER CANUCKS HOCKEY CLUB, VANCOUVER CANUCKS LIMITED PARTNERSHIP AND VANCOUVER HOCKEY GENERAL PARTNERS INC.

Defendants

Tim Danson and Marjan Delavar, for the Plaintiffs

Geoffrey D.E. Adair, Q.C., and Alexa Sulzenko for the Defendant Todd Bertuzzi

Alan L.W. D’Silva and James Mangan for the Defendants Orca Bay Hockey Limited Partnership and Orca Bay Hockey, Inc. cob The Vancouver Canucks Hockey Club, Vancouver Canucks Limited Partnership and Vancouver Hockey General Partners Inc.

HEARD: August 31, 2012

REASONS FOR DECISION

perell, j.

A. INTRODUCTION

[1] The Defendant Todd Bertuzzi and the Defendants Orca Bay Hockey Limited Partnership and Orca Bay Hockey, Inc., doing business as The Vancouver Canucks Hockey Club, Vancouver Canucks Limited Partnership, and Vancouver Hockey General Partners Inc. (collectively “Orca Bay”) appeal the Order of Master Dash dated June 28, 2012, reported as Moore v. Bertuzzi, 2012 ONSC 3497 (Master) and 2012 ONSC 4694 (Master). The Plaintiffs Steve Moore, Jack Moore and Anna Moore cross-appeal.

[2] In his June 2012 Order, the Master varied the Medical Examination Order of January 4, 2012. In his January Order, subject to an implementation protocol, the Master authorized each defendant to have a neuropsychological assessment of the Plaintiff Steve Moore. In his June Variation Order, although the two neuropsychological assessments had already been completed, the Master declared that the Defendants had to choose only one neuropsychological assessment and the other assessment would be struck out and nullified.

[3] Both sides submit the Master erred. The Defendants ask that the Variation Order Order be set aside and that they be permitted to deliver both medical examinations. The Plaintiffs ask that the Master’s Variation Order be expanded and that both neuropsychological assessments be struck out.

[4] For the Reasons and with the terms that follow, I allow the appeal and dismiss the cross-appeal.

B. FACTUAL AND PROCEDURAL BACKGROUND

[5] In 2004, Steve Moore was a 25-year old rookie professional hockey player with the Colorado Avalanche Hockey Club of the National Hockey League. On March 8, 2004, near the end of a game between the Avalanche and the Vancouver Canucks, the Defendant Todd Bertuzzi struck Mr. Moore causing him to break his neck and suffer a brain injury.

[6] On February 14, 2006, Mr. Moore and his parents commenced an action against Mr. Bertuzzi and Orca Bay. The Moores claim $41.5 million in damages, including a loss of an income claim of $35 million. Mr. Moore claims he suffered a permanent brain injury that ended his NHL career, and prevented him from pursuing other gainful employment.

[7] Each of Mr. Bertuzzi and Orca Bay delivered Statements of Defence that included crossclaims against the other for contribution and indemnity. Mr. Bertuzzi also issued a third party claim against his coach Marc Crawford, who delivered a defence to the third party claim. Mr. Bertuzzi pleaded that Crawford urged his players to make Moore "pay the price" knowing it would likely result in injury to Moore. He pleaded that Crawford failed to caution his players against physical aggression towards Moore. Mr. Bertuzzi claimed contribution and indemnity from Crawford.

[8] In its Statement of Defence, Orca Bay denied that its management had encouraged retaliation against Moore and stated that Bertuzzi's actions were "instigated completely on his own and independent of the Canuck's management or coaching staff.” It specifically denied liability for the acts of Mr. Bertuzzi and its own direct liability.

[9] By order dated November 19, 2007, Master Dash was assigned to case manage the proceedings.

[10] Between 2004 and June 2011, Mr. Moore served various records and reports about his neurological injuries including: two consultation reports from Dr. Gerber; two neuropsychological reports from Dr. Ptito; two neuropsychological testing reports from Dr. Naugle; three reports of neurologist Dr. Upton; three reports of neurosurgeon Dr. Charles Tator; and a psychovocational assessment report of Dr. Berman. Other treating physicians also have information to offer about Mr. Moore’s medical condition, although who will testify at trial is not known at this time.

[11] On July 13, 17, and 18, 2011, Mr. Bertuzzi, Orca Bay, and Crawford signed a Settlement Agreement. They did not, however, advise the Moores about their Settlement Agreement and the interlocutory phase of the proceedings continued.

[12] On November 9, 2011, Mr. Bertuzzi’s counsel advised Mr. Moore’s counsel that Mr. Bertuzzi had retained Dr. Michael McCrea and that Orca Bay had retained Dr. Grant Iverson to conduct independent neuropsychological assessments of Moore pursuant to a joint protocol as to the conduct of the examinations.

[13] A protocol was necessary to prevent what is known as a “practice effect” that might call into question the worth of two assessments, because Mr. Moore’s performance on a second examination might be influenced by what he experienced (a practice effect) on a first examination.

[14] Mr. Moore, however, was prepared to consent to only one medical examination, and therefore, the Defendants brought a motion for two simultaneous examinations subject to the protocol. In this regard, the Defendants’ proposal was that: (1) on the morning of Day 1, Dr. McCrea and Dr. Iverson would conduct separate interviews of Mr. Moore; each interview would last up to 90 minutes; (2) psychometric testing would be performed by a psychometrist starting in the afternoon of Day 1; and (3) psychometric testing would continue in the morning of Day 2 and, if necessary, continue into the afternoon.

[15] Meanwhile, the Moores brought a motion for an order requiring the Defendants to provide full details of any settlement agreements.

[16] The medical examination motion and the disclosure motion were heard on January 4, 2012. Master Dash described what occurred and the nature of the argument in paragraph 19 of his Reasons for Decision, reported as Moore v. Bertuzzi, 2012 ONSC 597 (Master), as follows:

19. At the hearing on January 4th, Mr. Adair neither confirmed nor denied the existence of an agreement. He took the position that the existence of an agreement was no more than mere speculation, that the court has no role to play since there is no evidence of an agreement that would tilt the landscape of the trial or prejudice the fair trial of the action and that if he forms the view at some unspecified future time that there is a professional obligation to disclose he will do so. He stated that he did not answer Mr. Danson's enquiries because this was an adversarial process and he need not "give an inch." When I questioned Mr. Adair about certain effects that such an agreement could have on the trial, such as restricting Bertuzzi's right to cross-examine Crawford if called as a witness by Orca Bay, he requested an adjournment to consider his position. Ms. Snow, speaking for Orca Bay at that time, also requested time. I adjourned the motion to January 23rd and ordered the defendants to bring any such agreement for the court's inspection on the return date.

[17] After adjourning the disclosure motion until January 23, 2012, and while unaware that the crossclaims had indeed been settled, Master Dash decided the Defendants’ motion for two medical examinations.

[18] During the argument on January 4, 2012 of the medical examination motion, the Defendants indicated that the neuropsychological assessments related solely to the issue of Mr. Moore’s damages, and they argued that two neuropsychological examinations were necessary and appropriate because Mr. Moore was claiming a substantial amount of damages and the assessment of his alleged brain injury was crucial to both Defendants and warranted two neuropsychological assessments to level the playing field against the numerous treating physicians, specialists, and proposed experts that Moore intended to rely on at trial.

[19] Master Dash granted the request for two medical examinations. In his Reasons, he explained his ruling as follows:

The plaintiff claims significant damages resulting from traumatic brain injury. The fact that neuropsychological assessments are key to understanding the extent of such damages is underscored by the fact that a [neuropsychologist] is the only expert assessment sought by [Orca Bay] and only 1 of 2 requested by Bertuzzi. Indeed the assessments requested today are the only requests for defence medicals in the almost 6 year history of this litigation.

In my view, despite the absence of adversity, considering the importance of [neuropsychological] assessments to traumatic brain injury, both defendants are entitled to independent [neuropsychological] assessments, and in the absence of evidence to the contrary, the process outlined in para. 22 of the Jordan affidavit is the most effective way to permit independent assessments while minimizing the practice effects as well as the impact on the plaintiff who will have to attend on only one occasion for 1 ½ days instead of time, probably both times for 1 ½ days.

[20] It will become important to note that in his reasons, Master Dash stated: “In my view, despite the absence of adversity, considering the importance of neuropsychological assessments to traumatic injury, both defendants are entitled to independent neuropsychological assessments.....". Master Dash was later to explain that what he meant by absence of adversity was absence of adversity on the issue of the quantum of damages not a total absence of adversity. In other words, because he was then unaware of whether there was a settlement agreement, his understanding was that Mr. Bertuzzi and Orca Bay remained adversarial except for their common cause to reduce the quantum of Mr. Moore’s damages.

[21] In the result, on January 4, 2012, Master Dash granted to both Mr. Bertuzzi and Orca Bay the right to conduct two defence medical examinations in accordance with the suggested protocol. However, two months later, in paragraphs 2 and 84 of his Reasons for Decision ordering that the Settlement Agreement be disclosed to the Moores, the Master stated in paragraphs 2 and 84:

2. If I knew on January 4th what I learned on January 23rd upon examination of the agreement, I may well have come to a different decision on allowing two neuropsychological examinations. In my view it was wrong of both defendants' lawyers not to bring the agreement, or at least the pending dismissals of the crossclaims, to my attention.

3. My apprehension on January 4th that the defendants remained adverse in interest and had separate interests to protect was one of the key considerations in my decision to permit two examinations in the same specialty, one on behalf of each defendant. I do not say that the result would necessarily have been different had I been properly informed; however the agreement should have been disclosed so that the plaintiffs could argue and the court could consider the termination of adversity between the defendants who were seeking separate examination as a factor in my determination of the issue. While there has been no disclosed intention to seek other medical examinations by each defendant in the same specialty it would be important for the plaintiffs and the court to know about the agreement before deciding such motions.

[22] The medical examinations were scheduled within days of the January 4, 2012 attendance before the Master, and one of the examining physicians was an American and Mr. Bertuzzi’s counsel asked Mr. Moore’s counsel to agree to the form and content of the formal order in order to facilitate the doctor’s border crossing and entry into Canada for a work assignment. What was issued was a truncated version of the Order. The Order was truncated because it omitted the protocol.

[23] The neuropsychological assessments of Mr. Moore by Drs. McCrea and Iverson took place in Toronto on January 9 and 10, 2012. Unfortunately, neither doctor was shown the protocol. As will appear, the Master’s view was that the doctors should have been shown the protocol and he held that it was wrong of the Defendants not to do so.

[24] The examination did not proceed in accordance with the protocol. On January 9, 2012, Mr. Moore arrived late at 10:30 a.m. Dr. McCrea conducted a clinical interview for about one hour. Following a break, Dr. Iverson conducted his clinical interview of Moore for just over an hour. Then, concerned that the neuropsychological testing might not be completed, Dr. Iverson interrupted his clinical interview, and after the lunch break, Dr. Iverson, rather than a psychometrist, commenced psychometric testing of Moore for approximately three and a half hours.

[25] On January 10, 2012, for first twenty minutes, Dr. Iverson asked follow-up questions. Dr. McCrea then completed his neuropsychological testing, finishing by approximately 11:45 a.m. Dr. Iverson continued his examination of Moore from approximately 11:45 a.m. until 12:30 p.m. and from 1:45 p.m. until 6:00 p.m.

[26] The neuropsychological assessments deviated from the proposed protocol insofar as: (a) the clinical interviews exceeded 90 minutes each and were not completed on the first morning but continued into the second day; (b) psychometric testing was not conducted by an independent psychometrist and was instead administered by Drs. McCrea and Iverson; and (c) the psychometric testing did not commence after the clinical interviews but was interspersed with the interviews.

[27] As already noted above, after the medical examinations, on January 23, 2012, the Master heard argument on whether the Defendants should disclose their settlement agreement to the Moores. The Master reserved judgment.

[28] On February 15, 2012, the Master released his Reasons on the disclosure motion, and he ordered the Defendants to produce the settlement agreement to the Moores within eight days. The Defendants appealed.

[29] On February 27, 2012, the parties appeared once again before Master Dash to address the Defendants’ counsel’s concerns that the Master’s reasons for decision had impugned the professional reputations of the Defendants’ counsel. The Master released Supplementary Reasons for Decision on February 28, 2012, stating that he had the highest regard for the professionalism and integrity of all of the lawyers involved in the action and did not mean to suggest that counsel for the Defendants had acted unprofessionally in any way by deciding not to disclose the Settlement Agreement.

[30] On May 14, 2012, I heard the appeal of the Master’s disclosure order.

[31] On June 4, 2012, I dismissed the appeal from the Master’s disclosure order. My reasons are reported Moore v. Bertuzzi, 2012 ONSC 3248.

[32] On June 11, 2012, the Moores brought a motion, seeking: (a) an order setting aside the Medical Examination Order and declaring it inoperative as at the time of the neuropsychological assessments; and/or (b) an order finding that the neuropsychological assessments of Mr. Moore by Drs. McCrea and Iverson were conducted in breach of the Medical Examination Order.

[33] The Moores’ motion to have the medical examinations thrown out was three pronged. They relied on: (1) rule 59.06; (2) rule 60.12; and (3) the authority of Aecon Buildings, a Division of Aecon Construction Group Inc. v. Brampton (City), 2010 ONCA 898, leave to appeal to S.C.C. denied, [2011] S.C.C. No. 33.

[34] Rule 59.06 provides that parties have a right to move to vary or set aside an order on the ground of facts subsequently arising or discovered. Rule 60.12 provides the court with jurisdiction to make such order as is just when a court order is breached. And the Aecon case empowers the court to impose serious sanctions for the failure to disclose a settlement agreement that alters the apparent adversarial orientation of a law suit.

[35] In their three-pronged motion for a variation of the Medical Examination Order, which was to have both medical examinations thrown out, the Moores argued that the existence of the Settlement Agreement was a newly discovered fact which, had it been disclosed at the time of the Medical Examination Motion, would have caused the Master to reach a different result. Alternatively, the Moores argued that the neuropsychological examinations were conducted in breach of the court order and, on that basis, both neuropsychological assessments ought to be set aside.

[36] For their part, the Defendants argued that the heart of the Moores’ case was the assertion that Mr. Moore had suffered a brain injury and, consequently, the neuropsychological assessments were critical to their defence. They argued that to deprive the Defendants of the benefit of the reports of Drs. McCrea and Iverson was out of proportion to the non-disclosure of the Settlement Agreement and the deviations from the protocol. The Defendants submitted that the more appropriate consequence was to award the Plaintiffs full indemnity costs on the motion but to allow them to use the medical examinations.

[37] On June 28, 2012, Master Dash released the Reasons, reported as Moore v. Bertussi, 2012 ONSC 3497, and he ordered that: (a) the Defence Medical Order be varied to allow the neuropsychological testing of either Dr. Iverson or Dr. McCrea on January 9 and 10, 2012; (b) the Defendants must decide by the earlier of seven days after the release of the Variance Reasons and 15 minutes before the start of the pre-trial conference which of Dr. Iverson or Dr. McCrea had conducted the neuropsychological assessment in accordance with the Defence Medical Order; and (c) the report of Dr. Iverson or Dr. McCrea which is not chosen by the Defendants shall be deemed not to be a report prepared pursuant to section 105 of the Courts of Justice Act, “shall be null and void and of no effect and shall not be used, tendered in evidence or referred to at any time by any party in the course of these proceedings.”

[38] On August 30, 2012, Master Dash released his costs endorsement, that reiterates some of his conclusions in his Reasons for Decision. See Moore v. Bertuzzi, 2012 ONSC 4694 (Master).

C. THE MASTER’S REASONS

[39] In these Reasons, Master Dash reviewed the above history and explained that when he made the original Medical Examination Order, he understood that the Defendants were not adverse in interest on the issue of damages but that it was his understanding that the Defendants remained adversaries in other respects. During the hearing of the motion for medical examinations, he had not been disabused of his understanding of the circumstances that the Defendants were crossclaiming adversaries and he explained that the existence of adversity between the Defendants was significant to him because it meant that they had separate interests to protect. Thus, he stated at paragraph 12 of his reasons:

12. I also did not know that the defendants had ended their adversity and had signed an agreement as to how liability would be apportioned whatever the outcome at trial. During the course of argument I specifically stated that despite the defendants' common interest on damages, the defendants had separate interests to protect. What I meant, and what I assumed, perhaps incorrectly, that the parties understood was that as a result of the existing crossclaims between the defendants, the defendants remained adverse in interest on liability. Neither defendant told me otherwise. I concluded in my February 15th endorsement, and in an addendum released on February 28, 2012 that the defendants' lawyers did not set out deliberately to mislead the court, failed to understand that my reference to "separate interests to protect" meant that I believed the defendants remained adverse in interest on liability and made an honest, but mistaken decision not to advise the court about the agreement to end adversity. They believed they had had no obligation to disclose but rather had a duty to protect what they considered to be a privileged settlement agreement.

[40] Addressing the three prongs of the Moores’ motion, Master Dash reasoned that the revelation that there was a Settlement Agreement was a newly discovered fact that could have changed the outcome of the Medical Examination Motion. In his opinion, knowledge that there was no remaining disputes between the Defendants could have changed the outcome, because the legal rule is where there are multiple defendants a second defence medical will be permitted only when the defendants are both independently represented and also adverse in interest.

[41] In other words, it was Master Dash’s opinion that adversity of interest between the co-defendants was a necessary prerequisite before a second defence medical will be permitted. Thus, Master Dash concluded that had he known about the Settlement Agreement, he would not have ordered a second defence medical. He also concluded that the Medical Examinations Order had been breached by the Defendants’ failure to disclose and abide by the protocol. And he concluded that Aecon, which imposed consequences of the most serious kind for the failure to disclose a settlement agreement, gave the court the jurisdiction to respond to what had occurred. The court had the jurisdiction to act, and in his opinion, the sufficient and fair response was to strike out one of the two medical examinations.

[42] Master Dash agreed with the Defendants’ submission that it would be going too far to strike out both medical examinations. In paragraph 63 of his Reasons, he stated:

63. A key issue in this action is the extent of Mr. Moore's cognitive impairments and his ability to engage in meaningful employment, matters within the expertise of a neuropsychologist. Without a neuropsychological assessment the defendants would be handcuffed from contesting the extent of Mr. Moore's claims and defending against those claims at trial, particularly given the plaintiffs' own expert reports. It would not create a level playing field, but would tilt the balance substantially in favour of the plaintiffs. I would add that the defendants have sought defence medical assessments only from neuropsychologists (now reduced to one neuropsychologist) and a neurosurgeon. This could not be considered overreaching.

[43] The Master reasoned that the proportionate and fair result was to place the parties where they would have been had proper disclosure of the Settlement Agreement been made at the time when two defences medicals were being sought. That position would have been to allow just one defence medical. In paragraphs 64 and 65 of his reasons, he stated:

65. While perhaps restricting the plaintiffs' remedy to what the correct order would have been on January 4th had there been full disclosure does not impose upon the defendants "consequences of the most serious nature", I am of the view that given the pending trial date, the impossibility of obtaining a fresh report at this time that could avoid the consequences of the practice effect (even if permitted) and the creation of a playing field tilted dramatically in favour of the plaintiffs, the remedy suggested by Mr. Danson would result in a consequence totally disproportionate to the failure to disclose. It is particularly disproportionate because the decision not to disclose, while deliberate, was made honestly and in good faith, but with a mistaken view by the defendants of their obligations at law, which arguably had to some extent been unsettled in the circumstances of this case.

66. I also disagree with Mr. Adair that the sole consequence should be the imposition on the defendants of the plaintiffs' full indemnity costs of this motion. That consequence fails to take into account that their non-disclosure, notwithstanding that it was made in good faith, resulted in the defendants getting more than they were entitled to on January 4th had the agreement been disclosed. Surely they cannot benefit by getting two examinations when the proper disposition of the motion made with full disclosure would have been one examination. That said, I do agree that the plaintiffs should have its full indemnity costs of the motion as "consequences of the most serious nature", but in addition to making the correct order as to the number of neuropsychologists. It may be that full indemnity costs are also in order for that part of the January 4th motion dealing with the neuropsychological examinations, but those costs have yet to be determined.

[44] In ordering that one defence medical be struck out, Master Dash disagreed with the Defendants’ argument that he was interfering in an evidentiary matter that was within the domain of the trial judge. On this issue, at paragraph 68 of his Reasons, the Master stated:

68. The problem with that argument is that it has no application to the matter before me. I am on this motion not deciding whether the second neuropsychological report is admissible at trial as an expert report. I am not determining if it is a proper expert report or if the second neuropsychologist is a qualified expert. I always had the authority on January 4th to refuse the motion for two neuropsychological assessments and this would have affected the evidence available for trial. What I am doing now is varying my order of January 4, 2012 such that only one neuropsychological assessment is ordered under section 105 of the Courts of Justice Act. As such the second neuropsychological assessment was not conducted under authority of section 105 and any report from an unauthorized assessment cannot be considered as a section 105 report and is in effect null and void. I am not ruling that the second neuropsychological assessment is inadmissible. I am ruling that there is no authorized second neuropsychological report upon which the trial judge can make any ruling as to admissibility.

[45] Finally, the Master dealt with the argument that there should be consequences for what the master agreed were breaches of the court’s order by the Defendants’ failure to comply with the protocol. On this point, his view was that the sanction of striking out one report was the appropriate remedy. In paragraph 74 of his Reasons, he stated:

74. In my view the appropriate remedy for the breach in all the circumstances has already been imposed for the failure to disclose, namely the defendants are restricted to a single neuropsychological report and the payment of full indemnity costs. No other sanction is necessary, appropriate or proportionate to the nature of the breach. As noted, it is not for me to decide as a master sitting in motions court, whether the surviving neuropsychological report is reliable and independent or whether it should be admitted as an expert report at trial.

[46] The Master summarized the outcome of the Variation Motion in paragraphs 2 and 3 of his costs endorsement, where he stated:

2. The Order was varied on either of two grounds. Firstly under rule 59.06 I considered the subsequently discovered fact (the ending of adversity) and determined that the order that would have been made on January 4th had I known the correct state of the defendants’ adversity was a single neuropsychological examination on behalf of one or both defendants. Secondly the elimination of one of the neuropsychological assessments was an appropriate “consequence of the most serious nature” as stated by the Court of Appeal in Aecon v. Brampton arising out of the breach of the defendants of their obligation to immediately disclose the settlement agreement.

3. I also found that the neuropsychologists did not conduct the examinations strictly in accordance with the terms of my January 4th order, but I did not impose further consequences to the defendants as a result.

D. STANDARD OF APPELLATE REVIEW

[47] On appeal, a Master’s decision is subject to being overturned if the Master made an error of law, exercised his or her discretion on wrong principles, or misapprehended the evidence such that there is a palpable and overriding error. Where the Master has made an error in law, the appropriate standard of review is correctness. See: Zeitoun v. Economical Insurance Group, (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 at paras. 40-41 (Div. Ct.), aff’d (2009), 2009 ONCA 415, 96 O.R. (3d) 639 (C.A.), Ontario v. Rothmans Inc., 2011 ONSC 2504 at para. 97.

[48] When the Master has decided a matter of law, which includes determinations of whether a question is relevant or whether evidence is privileged, the standard of review is correctness: Leadbeater v. Ontario 2004 CanLII 14107 (ON SC), [2004] O.J. No. 1228 (S.C.J.) at para. 29; Kennedy v. McKenzie, [2005] O.J. No. 2060 (S.C.J.) at para. 15.

E ARGUMENTS OF THE PARTIES ON THE APPEAL AND CROSS APPEAL

1. The Arguments of Mr. Bertuzzi

[49] Mr. Bertuzzi’s arguments are all adopted by Orca Bay. Mr. Bertuzzi’s main argument is that the Master erred by holding that adversity as between the co-defendants was a necessary precondition to making an order for two defence medical examinations in the same medical specialty. He argues in effect that the Master was correct in his original Medical Examination Order and there was no reason to change that order by reasons of the revelation of the Settlement Agreement.

[50] Further, Mr. Bertuzzi argues that the Court of Appeal’s decision in Aecon was improperly applied in making an order to strike out one of the two neuropsychological assessments and having regard to the minor or insignificant nature of the non-compliance with the protocol and critical importance of the Defendant’s neuropsychological assessments of Mr. Moore to their defence and to level the informational and adversarial playing field, the proper disposition of the Variation Motion should have been to dismiss it and the only appropriate sanction was to make the Defendants pay full indemnity costs.

[51] Finally Mr. Bertuzzi argues that the Master erred in law by usurping the jurisdiction of the trial judge by excluding relevant and critically important evidence to the Defendants’ defence to the substantial claims being brought by the Moores.

2. The Arguments of Orca Bay

[52] Orca Bay’s main argument is that Mr. Moore’s motion to vary the January Medical Examination Order was brought pursuant to rule 59.06 (2)(a), the new evidence rule, and, therefore, to succeed Mr. Moore had to show that the new evidence; namely, the Settlement Agreement: (a) could not have been discovered before the original hearing by the exercise of due diligence; and (b) the evidence “might probably have altered the judgment” or “would have changed the result” or “would have affected or altered the ultimate decision:” Becker Milk Co. v. Consumers’ Gas Co. (1974), 1974 CanLII 545 (ON CA), 2 O.R. (2d) 554 at para. 9 (C.A.). Orca Bay submits that the Master erred in deciding that the revelation of the Settlement Agreement would have changed the result of the motion for two medical examinations.

[53] More precisely, Orca Bay submits that assuming the Settlement Agreement is new evidence, this evidence would not have changed the result because: (a) the significance of the Settlement Agreement was to reveal that the co-defendants were not adverse in interest; however, in granting the January order, the Master already accepted that the co-defendants were not adverse in interest in so far as they both wished to diminish as much as possible the quantification of Mr. Moore’s damages and in his endorsement, he expressly stated that “two neuropsychological assessments were appropriate “despite the absence of adversity; (b) in any event, adversity is not and need not be a prerequisite for separate medical examinations, and, thus, the Master erred in making his Variation Order by reasoning that separate examinations by physicians with the same specialty are only permissible where the Defendants are “adverse in interest and separately represented;” rather multiple examinations may be ordered where such examinations are necessary in order to “level the playing field” between litigants. See Nelson v. Thiruchelvam, 2005 CanLII 4849 (ON SC), [2005] O.J. No. 743 (Master); and (c) further, in any event, the Settlement Agreement did not eliminate all elements of adversity between the Defendants, and each Defendant continues to have its own independent and financial interests in the outcome of the trial.

[54] Orca Bay also argues that the Master erred in concluding that the Medical Examination Order had been breached because Dr. Iverson and Dr. McCrea had not strictly complied with the protocol. In this regard, Orca Bay submits that the non-compliance was minor, did not prejudice Mr. Moore, and the variations might well have been made in the original Order defining a protocol.

[55] Further, Orca Bay argues that the Master erred in striking out the neuropsychological assessments which order was out of proportion and not called for under the authority of Aecon, upon which the Master mistakenly relied. Moreover, the Master erred in punishing the Defendants, but if there was to be a sanction an order of costs as against the Defendants was all that would have been appropriate.

[56] Finally, Orca Bay argues that the Master exceeded his jurisdiction by foreclosing the admission of evidence and by purporting to do so, he usurped the function of the trial judge.

[57] With respect to sanctions for the failure to comply with the protocol, Orca Bay portrays itself as unfairly punished because it was Mr. Bertuzzi that had taken responsibility for the protocol and its implementation but the practical outcome of the Master’s Variation Order is that Orca Bay’s neuropsychological assessment is the medical examination that will be nullified.

3. The Arguments of the Moores

[58] The Moores’ argument is that the Master was correct in deciding that there was new evidence and that the new evidence would have changed the result of the motion for two medical examinations. However, the Moores argue that the Master was wrong in not striking out both defence medical examinations. The Moores’ argument is that having correctly decided that the outcome of the Medical Examination motion would have been one neuropsychological assessment, it is to impose no sanction for the Defendants’ failure to disclose their Settlement Agreement by allowing them one neuropsychological examination. The result is that the Master imposed no Aecon sanctions and no punishment for the breach of the court order in the Defendants’ failing to comply with the protocol, which was not a minor but rather a very serious matter for the Moores.

[59] The Moores submit that beyond their own interests in the due administration of justice, and beyond the imperative from the Aecon case that there be serious consequences for a litigant’s failure to disclose a settlement agreement that changes the adversarial orientation of a law suit, the public interest requires that there be consequences for abuses of process and for the failure to comply with court orders.

[60] The Moores submit that the master made an error in law in not striking out both neuropsychological assessments.

F. DISCUSSION

[61] I begin the analysis but stating that I see no merits in the arguments that the Master usurped the jurisdiction of the trial judge or that the Master erred by concluding that the Medical Examination Order had been breached by the Defendants’ failure to advise the doctors about the protocol and by the doctors’ failure to comply with the protocol.

[62] I shall address the parties’ remaining competing arguments by undertaking my own legal analysis of the legal problems that confronted the Master when the Moores’ made their three-pronged attack to have the Medical Examination Order rescinded and both medical examinations struck out.

[63] For the purposes of this analysis, I will accept that the revelation on January 23, 2012 that the Defendants had many months earlier signed a Settlement Agreement was new evidence.

[64] The issue then becomes whether the Master was correct in concluding that this new evidence would have and should have changed his original decision to authorize two defence medicals.

[65] In my opinion, for two independent reasons, the Master erred in law in concluding that knowledge of the Settlement Agreement would have altered his original decision to authorize two defence medicals.

[66] The first independent reason is that the Master erred in law in concluding that the Settlement Agreements meant that the Defendants were no longer adverse in interest and, therefore, he erred in concluding that they did not satisfy a prerequisite element or necessary precondition for two medical examinations. The Master erred in law in what counts for adversity between co-defendants.

[67] The second independent reason is the Master erred in law in concluding that adversity was a necessary precondition for two medical examinations. In my opinion, where multiple defendants seek a medical examination, adversity between the defendants is a sufficient but not a necessary condition for authorizing a second medical examination. The fundamental measure is not adversity but fairness or due process, and adversity between co-defendants may justify that each defendant have its own defence medical but there will be other circumstances where fairness requires multiple and independent defence medicals. The critical issue is whether a second examination is required to ensure fairness in the adversarial process regardless of the adversarial orientation between the co-defendants.

[68] Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.45 empowers the court to order the party to undergo a physical or mental examination by one or more health practitioners. Section 105 states:

Physical or mental examination

Definition

105.(1)In this section,

“health practitioner” means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction.

Order

(2)Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

Idem

(3)Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

Further examinations

(4)The court may, on motion, order further physical or mental examinations.

Examiner may ask questions

(5)Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.

[69] Rule 33 governs the procedure for medical examination of parties. Rule 33 states:

RULE 33 MEDICAL EXAMINATION OF PARTIES

MOTION FOR MEDICAL EXAMINATION

33.01 A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.

ORDER FOR EXAMINATION

Contents of Order

33.02 (1) An order under section 105 of the Courts of Justice Act may specify the time, place and purpose of the examination and shall name the health practitioner or practitioners by whom it is to be conducted. R.R.O. 1990, Reg. 194, r. 33.02 (1).

Further Examinations

(2) The court may order a second examination or further examinations on such terms respecting costs and other matters as are just. R.R.O. 1990, Reg. 194, r. 33.02 (2).

DISPUTE AS TO SCOPE OF EXAMINATION

33.03 The court may on motion determine any dispute relating to the scope of an examination.

PROVISION OF INFORMATION TO PARTY OBTAINING ORDER

Interpretation

33.04 (1) Subrule 30.01 (1) (meaning of “document”, “power”) applies to subrule (2).

Party to be Examined must Provide Information

(2) The party to be examined shall, unless the court orders otherwise, provide to the party obtaining the order, at least seven days before the examination, a copy of,

(a) any report made by a health practitioner who has treated or examined the party to be examined in respect of the mental or physical condition in question, other than a practitioner whose report was made in preparation for contemplated or pending litigation and for no other purpose, and whom the party to be examined undertakes not to call as a witness at the hearing; and

(b) any hospital record or other medical document relating to the mental or physical condition in question that is in the possession, control or power of the party other than a document made in preparation for contemplated or pending litigation and for no other purpose, and in respect of which the party to be examined undertakes not to call evidence at the hearing.

WHO MAY ATTEND ON EXAMINATION

33.05 No person other than the person being examined, the examining health practitioner and such assistants as the practitioner requires for the purpose of the examination shall be present at the examination, unless the court orders otherwise.

MEDICAL REPORTS

Preparation of Report

33.06 (1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.

Service of Report

(2) The party who obtained the order shall forthwith serve the report on every other party.

PENALTY FOR FAILURE TO COMPLY

33.07 A party who fails to comply with section 105 of the Courts of Justice Act or an order made under that section or with rule 33.04 is liable, if a plaintiff or applicant, to have the proceeding dismissed or, if a defendant or respondent, to have the statement of defence or affidavit in response to the application struck out.

EXAMINATION BY CONSENT

33.08 Rules 33.01 to 33.07 apply to a physical or mental examination conducted on the consent in writing of the parties, except to the extent that they are waived by the consent.

[70] In making the order varying the Medical Examination Order, Master Dash relied on the judgment of Justice Thorburn in Marcoccia v. Gill, [2006] O.J. No. 4972 (S.C.J.) and the judgment of Master Pope in Anderson v. 45859 Ontario Ltd., 2010 ONSC 6585 (Master). He applied the rule that each defendant, separately represented and adverse in interest is entitled to its own medical examination, unless multiple examinations would cause the plaintiff unnecessary inconvenience or embarrassment or where further defence medicals would not serve the just and most expeditious or least expensive determination of the proceeding on the merits.

[71] The Master reasoned that because of the Settlement Agreement, Mr. Bertuzzi and Orca Bay were not adverse in interest, where “adverse interest” means "a manifest adverse pecuniary or other substantial interest in one defendant as against another defendant" and the interest which is said to be adverse means "pecuniary interest, or any other substantial interest in the subject matter of the litigation." See: Menzies v. McLeod (1915), 1915 CanLII 419 (ON SC), O.J. No. 128 (H.C.J.) at para 10; Aviaco International Leasing Inc. v. Boeing Canada Inc., [2000] O.J. No. 4401 (S.C.J.) at para 7; Kapileshwar v. Sivarajah, [2008] O.J. No. 4501 (Master) at para. 8.

[72] In J.W. Morden and P.M. Perell, The Law of Civil Procedure in Ontario, (Toronto: NexisLexis, 2010) at p. 491, I discuss adversity in interest as follows:

Who is adverse in interest is determined by the pleadings and upon the state of the record as a whole; 1224948 Ontario Ltd. v. 448332 Ontario Ltd., [1998] O.J. No. 4544 (Gen. Div.); Aviaco International Leasing Inc. v. Boeing Canada Inc., [2000] O.J. No. 4401 (S.C.J.); Lederer v. Fenwick, [2002] O.J. No. 2021 (S.C.J.); Chaloub v. Standard Life Assurance Co., [2008] O.J. No. 843 ( S.C.J.)., and co-defendants may be adverse in interest on some issues. The classic definition of adverse in interest was provided by Chancellor Boyd, who stated:

An actual issue in tangible form spread upon the record is not essential, so long as there is a manifest adverse interest in one defendant as against another defendant. ‘Adverse interest’ is a flexible term, meaning pecuniary interest, or any other substantial interest in the subject-matter of litigation: Menzies v. McLeod, 1915 CanLII 419 (ON SC), [1915] O.J. No. 128, 34 O.L.R. 572 at 575 (H.C.J.).

In the case law, the idea of an “adverse interest” tends to be given a broad scope, and this approach expands the rights of parties to examine other parties for discovery, for example, a defendant may have a right to examine a co-defendant without there being a cross-claim: Lederer v. Fenwick, supra; Aviaco International Leasing Inc. v. Boeing Canada Inc., supra; Air Canada v. Meridien Credit Corp. Canada, [1985] O.J. No. 1692 (Dist. Ct.); Menzies v. McLeod, supra.

[73] The Master, however, erred in law in concluding that the adversity of interest between Mr. Bertuzzi and Orca Bay had been removed by the Settlement Agreement.

[74] That the co-defendants in the case at bar remained adverse in the requisite sense can be quickly demonstrated by visualizing and comparing what would have happened without the Settlement Agreement and what will happen at the trial now with the Settlement Agreement.

[75] Without the Settlement Agreement, Mr. Bertuzzi in pursuit of his crossclaim against Orca Bay would have testified in chief, as he pleaded, that Coach Crawford urged his players to make Moore "pay the price." Now, with the Settlement Agreement, although Mr. Bertuzzi may have no motivation to testify about what Coach Crawford said, nevertheless, he will be cross-examined by the Moores, who in pursuit of their claim for direct or vicarious liability against Orca Bay, will undoubtedly question Mr. Bertuzzi about his pleaded position, which has never changed, and pit Mr. Bertuzzi against Orca Bay.

[76] To use the language of Master Dash, notwithstanding the Settlement Agreement, Orca Bay has a very significant separate interest to protect because of Mr. Bertuzzi’s evidence, which he has given on his examinations for discovery about the conduct of the coach and management of the hockey club. Mr. Bertuzzi did not and could not agree to supress this evidence and his evidence may implicate Orca Bay, which undoubtedly will ask the trial judge for leave to cross-examine Mr. Bertuzzi if he gives any damaging evidence. In this regard, it is worth noting that although the Defendants have a Settlement Agreement, neither of them have amended or retracted the allegations in their respective Statements of Defence. The Settlement Agreement did not remove the adversity between Mr. Bertuzzi and Orca Bay about the facts.

[77] I pause here to point out that the above analysis does not cast doubt on the analysis in my judgment in Moore v. Bertuzzi, 2012 ONSC 3248 or the Master’s analysis that Mr. Bertuzzi and Orca Bay were obliged to promptly disclose their Settlement Agreement. Indeed, this analysis reinforces the conclusions that the adversarial orientation of the proceedings had changed and that the court during, both the interlocutory phase and also at trial, would require precise information about the nature and quality of the adversarial orientation of the parties. The adversarial orientation had changed insofar as there was no longer crossclaims, but Mr. Bertuzzi and Orca Bay had adversarial positions about their respective roles in the circumstances that led to what happened on the ice during the game between the Avalanche and the Canucks.

[78] Thus, the Master made a legal error in his assessment of adverseness, and notwithstanding the revelation of the Settlement Agreement, he ought to have applied the rule that each defendant, separately represented and adverse in interest, is entitled to its own medical examination.

[79] Putting aside the application of rule 60.12 and the authority of the Aecon case, this analysis is sufficient to establish that the Master’s original decision remained correct, and thus the Defendants were entitled to two neuropsychological examinations of Mr. Moore.

[80] As noted above, there is a second line of argument that leads to the conclusion that the original Medical Examination Order was correct and that the Master’s decision to rescind the decision based on the discovery of an absence of an adverse interest was incorrect in law and, therefore, subject to appellate correction.

[81] The thesis of the second and independent line of legal analysis is that although the rule from Marcoccia v. Gill, supra is correct, it is not a comprehensive rule and a court may allow a separately represented defendant a medical examination even if that defendant is not adverse in interest as against a co-defendant.

[82] This analysis begins with the observation that there is nothing in s. 105 of the Courts of Justice Act that specifies adverseness between co-defendants as a prerequisite to obtaining an order for a medical examination, and any adverseness requirement is introduced by Rule 33, where the adversity normally and typically would be between the plaintiff who puts his or her physical or mental condition in question and the party seeking the medical examination. There is no requirement under the statute or under the rule that a defendant seeking a medical examination of the plaintiff need also be adverse to a co-defendant.

[83] The analysis continues with the observation that in Marcoccia v. Gill, Justice Thorburn did not apply the rule extracted from Marcoccia v. Gill. Rather, she ordered a defence medical notwithstanding that there was no adverse interest between the co-defendants. In Marcoccia v. Gill, Mr. Marcoccia was seriously injured in a motor vehicle accident. The defendants were the driver of the vehicle, the lessee of the vehicle, and Ford Credit, the lessor of the vehicle. There were no-cross claims between the defendants. Mr. Marcoccia had reached a settlement with the driver and the lessee at their insurance limits, and he was pursuing a claim only against Ford Credit. In light of Mr. Marcoccia indicating that he planned to amend his statement of claim to increase his claim from $2 million to $11 million, Ford Credit moved for a medical examination by a neuropsychologist to assess the extent of injuries and the cost of future care and replacement of services. Mr. Marcoccia objected because he had already been examined by the co-defendants before the settlement. Justice Thorburn held that in these circumstances, it was not necessary to determine whether Ford Credit was adverse in interest to the co-defendants. The new neuropsychological assessment would not merely corroborate the previous assessment done on behalf of the co-defendants, and it was important to have a neuropsychologist examine the level of future care required and the costs to be incurred by Mr. Marcoccia. Given the large amount of Mr. Marcoccia’s claim, Ford Credit's defence would be prejudiced without its own assessment of the plaintiff’s injuries.

[84] There are other cases where separately represented defendants have been entitled to their own defence medicals without any discussion of whether they are adverse in interest with co-defendants. See: Maniram v. Jagmohan, [1988] O.J. No. 2877 (Ont. Master), affd [1988] O.J. No. 2876 (H.C.J.); Kontosoros v. Dodoro, [1987] O.J. No. 2368 (Ont. Master), affd [1987] O.J. No. 2324 (H.C.J.).

[85] In LaForme v. Paul Revere Life Insurance Co., [2006] O.J. No. 2508 (Div. Ct.) at para. 14, the Divisional Court stated that s. 105 of the Court of Justice Act and Rule 33 were a statutory regime created to promote fairness in the litigation process. The Court stated:

The Courts of Justice Act and the Rules of Civil Procedure have created a statutory regime to promote fairness in the litigation process and to uphold the right of the defendant to conduct its defence as advised and to assist the court at an eventual trial by furnishing expert evidence that is subject to the adversarial process. The purpose of s. 105 and Rule 33 is to "level the playing field".

[86] The fairness of allowing a defendant its own medical examination of the plaintiff is not limited to circumstances where the defendant is adverse in interest with the co-defendant who has already obtained a medical examination of the plaintiff.

[87] It should be kept in mind that it will be a separately represented defendant who will seek its own examination, which may be a second medical examination of the plaintiff. In that context, the circumstance that other co-defendants may have already had examinations of the plaintiff may be a factor in determining whether the defendant, who is seeking the examination, has had a fair opportunity to make full answer and defence, but the presence or absence of adversity between the co-defendants simply is some measure whether it is fair to make one defendant rely on an examination initiated by another.

[88] The appearance of unfairness to the defendant seeking his or her own examination of the plaintiff is more readily apparent if the defendant seeking the examination would be forced to rely on an examination initiated by a foe, but as Marcoccia v. Gill demonstrates, even if there is no adversity between co-defendants, it may simply be unfair to deny a defendant its own independent examination of the plaintiff. The statutory scheme was created to promote fairness in the adversarial process, and restoring the balance of the scales of justice is not limited to circumstances where co-defendants are adverse in interest.

[89] In measuring the fairness of the order allowing a second medical examination, it is also worth noting that there is always some risk when any defendant seeks a defence medical, because under Rule 33, the report cannot be hidden from the plaintiff and it may turn out that the defence medical helps, or at least does not hurt, the plaintiff’s case. The contemporary approach of the Rules of Civil Procedure is to emphasize that expert witnesses are not to be proxy advocates but to provide an honest, unbiased opinion.

[90] In the case at bar, if one accepts the principal that each separately represented defendant is entitled to make full answer and defence to a claim that, if successful, may be the largest personal injury claim in Canadian legal history and recalling the substantial significance of the neuropsychological evidence to both the claim and the defence, in my opinion, the Master was correct in the first instance and ought not to have revised his Medical Examination Order.

[91] Put somewhat differently, if on January 4, 2012, the Defendants had disclosed their Settlement Agreement, it still would have been just and fair in the circumstances to permit two simultaneous neuropsychological examinations.

[92] Putting aside the application of rule 60.12 and the authority of the Aecon case, in my opinion, the Master erred in concluding that the subsequent discovery of the Settlement Agreement changed anything. For a second reason, his initial order was fair and he ought not to have changed it.

[93] The analysis thus far, however, does not dispose of the appeal and the cross-appeal. The Defendants are still confronted with rule 60.12 and Aecon and the Moores’ arguments that there must be serious consequences for failing to disclose the Settlement Agreement and consequences for the contravention of the protocol, which was a part of a court order.

[94] The analysis of what are the appropriate consequences for the Defendants’ failure to disclose the Settlement Agreement and their failure to comply with the protocol may begin with three observations. First, the failures were lawyer failures and lawyer mistakes about compliance with the law. Second, the Master concluded that the failures were not reprehensible and while wrong were made in good faith by the lawyers. Third, ultimately, there was no miscarriage of justice. The above analysis reveals that with or without the Settlement Agreement, the Defendants were entitled to two neuropsychiatric examinations of Mr. Moore. The Settlement Agreement has now been disclosed and the court and the trial judge are able to adjust the pre-trial and trial procedure accordingly.

[95] The third factor that there has been no miscarriage of justice distinguishes the case at bar from Aecon, which I describe and discuss in my Reasons for Decision on the appeal of the Order requiring the Defendants to disclose their Settlement Agreement.

[96] I agree that there should be consequences for the Defendants’ lawyer-driven offences to proper civil procedure, but the administration of justice is not vindicated by a disproportionate response that itself would impair a fair trial of the dispute between the Moores and the Defendants. It was all of necessary, fair, and just to permit the Defendants two neuropsychological assessments, and, in my opinion, it would be an unfair sanction and a punishment that does not fit the offence to take away one or both of the already performed neuropsychological assessments.

[97] With respect to appropriate sanctions, in my opinion, the Master’s costs endorsement requiring the Defendants’ to pay full indemnity costs was appropriate. Similarly, I order that the Defendants’ should pay full indemnity costs for their successful appeal and for their success in resisting the cross-appeal as an appropriate sanction for the failure to disclose the Settlement Agreement and for breaching the protocol.

[98] I also order as a sanction that at the Defendants’ joint reasonable expense, Mr. Moore may retain his own medical expert to conduct a neuropsychological assessment of Mr. Moore and or a report on the neurological assessments prepared by Dr. Iverson and Dr. McCrea. I order that Mr. Moore shall not be obliged to deliver a copy of the expert’s report, unless he is advised to waive his litigation privilege with respect to the report. If the parties cannot agree what is a reasonable expense, the amount of the expense shall be determined by the court.

[99] This last sanction is a punishment that fits the offence and is consistent with ensuring that there is a fair trial and that the court has adequate evidence in its pursuit of truth. Thus, the sanction is consistent with the purposes of s. 105 and Rule 33 and, in my opinion, satisfies the requirements of Aecon and of rule 60.12.

G. CONCLUSION

[100] For the above reasons and subject to the terms set out above, I allow the appeal and dismiss the cross-appeal.

Perell, J.

Released: September 5, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEVE MOORE, JACK MOORE AND ANNA MOORE

Plaintiffs

– and –

TODD BERTUZZI, ORCA BAY HOCKEY LIMITED PARTNERSHIP AND ORCA BAY HOCKEY, INC. cob THE VANCOUVER CANUCKS HOCKEY CLUB, VANCOUVER CANUCKS LIMITED PARTNERSHIP AND VANCOUVER HOCKEY GENERAL PARTNERS INC.

Defendants

REASONS FOR JUDGMENT

Perell, J.

Released: September 5, 2012