Moore et al. v. Bertuzzi et al. [Indexed as: Moore v. Bertuzzi]

110 O.R. (3d) 124

2012 ONSC 597

Ontario Superior Court of Justice,

Master Dash

February 15, 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 [page125] of 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 -- Agreement changing landscape of litigation -- Plaintiff entitled to production of settlement agreement.

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 as well as the owners of the Canucks (the "Orca Bay defendants"), pleading that the Orca Bay defendants were not only vicariously liable for B's actions but were also directly liable as a result of persons in a position of management encouraging players to effect retribution against the plaintiff for an earlier attack on a Vancouver player and failing to take reasonable measures to prevent violence against him. 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 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.

Held, the motion should be granted.

The result was the same whether settlement privilege is a class privilege or must be established by a case-by-case analysis applying the Wigmore test. The settlement agreement changed the landscape of the litigation. Production of the agreement would permit the plaintiff to make an informed decision whether to pursue liability against all defendants with its attendant costs. It would permit a more meaningful pre-trial conference. Knowing the financial incentives as set out in the percentage split among the defendants and the third party would permit the plaintiff to conduct an effective cross- examination. The terms of the settlement agreement were thus broadly relevant to the conduct of the litigation. In short, production created an equality of arms necessary for trial fairness. The percentage splits also had to be disclosed since otherwise they would make any judicial apportionment of liability a sham.

MOTION to compel production of a settlement agreement.

Cases referred to Bodnar v. Home Insurance Co., [1987] O.J. No. 2365, 25 C.P.C. (2d) 152 (H.C.J.-Master); Inter-Leasing Inc. v. Ontario (Minister of Finance), 2009 63595 (ON SCDC), [2009] O.J. No. 4714, [2010] 1 C.T.C. 177, 256 O.A.C. 83 (Div. Ct.); Ipex Inc. v. AT Plastics Inc., [2011] O.J. No. 3636, 2011 ONSC 4734, 337 D.L.R. (4th) 63, 205 A.C.W.S. (3d) 654, 4 C.L.R. (4th) 223; Noonan v. Alpha-Vico, [2010] O.J. No. 2807, 2010 ONSC 2720, 99 C.P.C. (6th) 266; Ontario (Liquor Control Board) v. Magnotta Winery Ltd. (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), 2009 92118 (ON SCDC), 97 O.R. (3d) 665, [2009] O.J. No. 2980, 2 Admin. L.R. (5th) 273 (Div. Ct.), consd

Other cases referred to 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; Johnstone v. Locke, [2011] O.J. No. 5527, 2011 ONSC 7138; Laudon v. Roberts, [2009] O.J. No. 1824, 2009 ONCA 383, 249 O.A.C. 72, 77 M.V.R. (5th) 165, 308 D.L.R. (4th) 422, 66 C.C.L.T. (3d) 207, 178 A.C.W.S. (3d) 135; [page126] Leadbetter v. Penncorp Life Insurance Co., [1999] O.J. No. 496 (Gen. Div.); Moore v. Bertuzzi (2007), 2007 57934 (ON SC), 88 O.R. (3d) 499, [2007] O.J. No. 5113, 51 C.P.C. (6th) 10, 163 A.C.W.S. (3d) 364 (S.C.J.); Moore v. Bertuzzi, [2008] O.J. No. 347, 164 A.C.W.S. (3d) 609 (S.C.J.); Noldin v. Prince, Court File No. 99-CL-003572, Ground J. (S.C.J.) [Leave to appeal refused [2003] O.J. No. 1808 (Div. Ct.); 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.); R. v. McKinnon, [2010] O.J. No. 3001, 2010 ONSC 3896, 267 O.A.C. 198 (Div. Ct.); Ricci v. Gangbar, [2010] O.J. No. 4321, 2010 ONSC 5450; Slavutych v. Baker, 1975 5 (SCC), [1976] 1 S.C.R. 254, [1975] S.C.J. No. 29, 55 D.L.R. (3d) 224, 3 N.R. 587, [1975] 4 W.W.R. 620, 75 CLLC Â14,263 at 497, 38 C.R.N.S. 306; SNC-Lavalin Profac Inc. v. Sankar, [2007] O.J. No. 1966, 157 A.C.W.S. (3d) 724 (S.C.J.); Williams v. Douglas, [2003] O.J. No. 2435, 34 C.P.C. (5th) 109, 123 A.C.W.S. (3d) 667 (S.C.J.-Master); Wong v. Second Cup Ltd., [2006] O.J. No. 3299, 150 A.C.W.S. (3d) 569 (S.C.J.-Master)

Statutes referred to Evidence Act, R.S.O. 1990, c. E.23, s. 12

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30.10, 30.1.01(3), (5)(a), 37.07(1), 49

Authorities referred to Institute for Civility and Professionalism, "An Advocate's Duty to the Court" in Principles of Professionalism for Advocates (Toronto: Advocates' Society, April 2009) Law Society of Upper Canada, Rules of Professional Conduct, rule 4.01, Commentary

Timothy Danson and Marjan Delavar, for plaintiffs. Geoffrey Adair and John J. Adair, for defendant Bertuzzi. Ellen Snow and Alan D'Silva, for Orca Bay defendants.

[1] Master DASH: -- This is a motion by the plaintiffs to compel production of a settlement agreement entered into by the defendants and a third party that resulted in a consensual dismissal of cross-claims between the defendants and of the third party claim. It is not a Mary Carter agreement, but like a Mary Carter agreement, it is a secret agreement among some but not all parties that ends adversity among the settling parties. The defendants resist production on the basis of settlement privilege.

[2] The plaintiffs have not been advised as to the specifics of the agreement, only that it resulted in the dismissal of the third party claim and all cross-claims. The plaintiffs take the position that they are entitled to see the entirety of the agreement because the elimination of adversity among all the other parties substantially changes the landscape of the action and will affect the trial process as well as pre-trial procedures. Pursuant to court order, the agreement has been provided to me for my review. [page127]

[3] To see if and how the agreement has changed the landscape of the proceeding, it is necessary to review the pleadings both before and after the agreement and a brief history of some events in this action. The action was commenced on February 14, 2006, and I have been case-managing the proceeding since November 20, 2007. I am therefore quite familiar with the litigation. Background and Litigation Events Prior to Settlement Agreement

[4] The events that led up to this action were described by me in an endorsement on an earlier motion [See Note 1 below] as follows:

During a National Hockey League ("NHL") game on March 8, 2004 the defendant Todd Bertuzzi, then with the Vancouver Canucks Hockey Club ("Canucks"), allegedly struck the plaintiff Steve Moore, then a hockey player with the Colorado Avalanche Hockey Club, from behind and drove his face onto the ice causing Moore serious injury and allegedly ending his career in the NHL. It is alleged that the action was taken as a payback for an incident in an earlier game between Moore and another Canucks' player, Markus Naslund. The Canucks are owned by the Orca Bay defendants. The incident was highly publicized, has been the subject of ongoing media attention and was described as one of the most violent attacks in the NHL, tarnishing the image of Canada's national sport. Bertuzzi pleaded guilty to a charge of assault causing bodily harm on December 22, 2004 and was disciplined for his conduct by the NHL with a multi-game suspension.

[5] This action was commenced on February 14, 2006 for pecuniary and non-pecuniary damages arising out of the assault as well as aggravated and punitive damages. The claim against the various defendants who were owners of the Vancouver Canucks hockey team (collectively "Orca Bay") was originally pleaded solely on the basis of vicarious liability as Bertuzzi's employer. Each of Bertuzzi and Orca Bay delivered statements of defence which included cross-claims against the other for contribution and indemnity. Bertuzzi admitted striking Moore from behind causing injury, but without intent to injure. Orca Bay denied owing or breaching a duty of care to Moore and denied vicarious liability for Bertuzzi's actions. Both defendants denied the extent of the damages as claimed.

[6] An examination for discovery was conducted in August 2007 of the defendant Bertuzzi and of David Nonis, the senior vice- president and general manager of the Canucks, on behalf of the Orca Bay defendants. During the examination of Bertuzzi, [page128] evidence was given that in the dressing room between the second and third periods the Canucks' coach, Marc Crawford, told the Canucks players, including Bertuzzi, that Moore had to "pay the price". The plaintiffs allege that by this statement the coach was encouraging the Canucks players to engage Moore in a fight as retaliation for the Naslund incident. Some of the questions asked of Nonis related to the negligence of the Canucks, including a failure to take steps to prevent a retaliatory payback against Moore, which he refused to answer on the basis that negligence was not pleaded against the Orca Bay defendants, only vicarious liability.

[7] I then heard a motion to amend the statement of claim which was substantially granted on February 1, 2008. [See Note 2 below] The amendments specifically plead that the Orca Bay defendants are not only vicariously liable for Bertuzzi's actions but also directly liable as a result of persons in a position of management encouraging players to effect retribution against and failing to take reasonable measures to prevent violence against Moore. In particular, it is pled that then Canuck president and general manager, Brian Burke, and then head coach, Marc Crawford, made comments following the February 16, 2004 game that constituted a "calling out" to Canucks' players to take retaliatory action and effect "payback" against Moore -- in effect putting a "bounty" on Moore. It is also pled that Crawford pointed to Moore's name on a player board between the second and third period of the March 8, 2004 game and told Canuck players Moore had to "pay the price". The amendments also allege that the failure of Burke, Crawford and Nonis or any members of Canuck ownership or management to take positive action to prevent a retaliatory payback against Moore despite concerns expressed by NHL executives constituted negligence of Orca Bay.

[8] The defendant Orca Bay points out that the plaintiffs made a deliberate decision not to directly name Burke or Crawford as defendants. The plaintiffs take the position that was unnecessary since the actions of Nonis, Burke and Crawford, who constituted management, are deemed to be actions of Orca Bay and Orca Bay is liable for tortious actions committed by them.

[9] On March 3, 2008, shortly after the amendments to the statement of claim, Bertuzzi issued a third party claim against Crawford. Bertuzzi pleaded that it was a term of his employment that he take direction from Crawford as a player, that Crawford urged his players, including Bertuzzi, to make Moore "pay the [page129] price" knowing it would likely result in injury to Moore and failed to caution his players against physical aggression towards Moore. In the result, Bertuzzi claimed contribution and indemnity against Crawford for any judgment awarded against him.

[10] Crawford retained his own counsel and delivered a defence to the third party claim. Crawford did not defend the main action (as he was entitled to do). In his third party defence, Crawford denies that he gave any direction to the players, including Bertuzzi, to retaliate against Moore following the February 16, 2004 game or during the March 8, 2004 game. He does not specifically deny (nor admit) that he told the players to make Moore pay the price, but states that the game plan on March 8 was to play physically against Colorado puck carriers within the rules of hockey and this is what is commonly meant by "pay the price". He denies that he ever suggested that players engage in conduct outside the rules of hockey and that he could not have foreseen that his coaching direction "might lead to the attack by Bertuzzi on Moore that later ensued". Crawford also pleads that after missing a shift change, he directed Bertuzzi to get off the ice, but instead Bertuzzi turned, skated back to Moore and attacked and injured him, conduct not encouraged, condoned or anticipated by Crawford. He pleaded that Bertuzzi's actions were contrary to Bertuzzi's duty to other NHL players, contrary to Crawford's directions and was a "criminal attack", contrary to the laws of Canada.

[11] Orca Bay also amended its statement of defence on July 10, 2008 to respond to the direct allegations of negligence against it. It pled that after the February 16, 2004 incident with Naslund, Canucks' management and coaching staff took steps to ensure Canucks' players forgot about Moore. It denied that Burke, Crawford or other members of Canucks' management "called out" or encouraged retaliation by Canucks' players against Moore or that a "bounty" was placed on Moore. It denied that Crawford instructed Bertuzzi or other players to make Moore "pay the price". It stated that Bertuzzi's actions on March 8, 2004 in trying to start a fight with Moore and hitting him from behind were "instigated completely on his own and independent of the Canuck's management or coaching staff". It denied negligence on the part of Orca Bay or any employees for whom they are in law responsible or that any such employees contributed to Moore's injuries. It specifically denied vicarious liability for the acts of Bertuzzi. Orca Bay maintained their cross-claim against Bertuzzi.

[12] Clearly, there was an adversity of interest as between Bertuzzi and Orca Bay and as between Bertuzzi and Crawford. [page130]

[13] Between the date of the amendment motion in February 2008 and the current motion heard in January 2012, the parties attended additional follow-up discoveries, attended case conferences and a status hearing before me, brought motions before me for a variety of relief relating to production of documents and discovery issues and attended mediation. Most of the issues raised on these motions have little or no relevance to the matter I must decide in this endorsement, with a few exceptions. One of the issues was the discovery of Crawford. As the plaintiff did not name Crawford as a defendant and Crawford as third party did not defend the main action, the plaintiff had no right to examine him. A potential motion to examine Crawford as a non-party under rule 30.10 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] was resolved by having the plaintiffs put questions about Crawford to Nonis, the discovery witness for Orca Bay. Crawford agreed to provide the information to Nonis, who in turn would provide it to the plaintiffs. Crawford answered the questions asked and ultimately Orca Bay adopted those answers as binding on it.

[14] A motion was brought before me on January 4, 2012 for a variety of relief brought by both defendants and by the plaintiffs. This included a motion by the defendants for defence medical examinations, which will be discussed further in this endorsement, as well as the motion which is the subject matter of this endorsement and which continued on January 23, 2012.

[15] The main action was set down for trial on January 26, 2010 and the third party action was set down for trial on September 29, 2010. On July 21, 2011, Mr. Justice Moore conducted a case conference in order to set trial dates. Three alternate trial dates were set for a 10- 12-week trial: September 24, 2012 if Bertuzzi is actively playing hockey in the 2012/13 season, October 12, 2012 if he is not playing and September 9, 2013 if Orca Bay successfully moved to strike the jury notice (to allow time for appeal). As Orca Bay had not yet determined whether to bring such motion, and given its significant effect on the trial date, I made an order on January 4 imposing strict deadlines for Orca Bay to make that determination and bring its motion. The Settlement Among the Defendants and Third Party

[16] On July 13, 17 and 18, 2011, Bertuzzi, Orca Bay and Crawford signed in counterparts the minutes of settlement that are the subject of this motion. They did not advise the plaintiffs' lawyer that an agreement had been signed, let alone the substance of the agreement. On August 24, 2011, the registrar signed an order on the motion of the third party Crawford and [page131] with the consent of Bertuzzi and Crawford, being the parties to the third party action, to dismiss the third party action without costs. The plaintiffs were not served with a notice of that motion since they were not parties to the third party action and because Crawford had determined not to defend the main action. [See Note 3 below] The plaintiffs were not advised that such motion was being brought, nor was the order served on the plaintiffs after it was obtained.

[17] The first that the plaintiffs heard of the order was an e-mail from the lawyer for Crawford on September 19, 2011, who stated that it was not necessary to include Crawford in arrangements to schedule a pre-trial "as the third party action against my client Mr. Crawford has been dismissed". She attached a copy of the order. There was no mention of any written agreement. On September 22, 2011, Mr. Danson wrote to the lawyer for Bertuzzi, Geoffrey Adair, and the lawyers for Orca Bay, Alan D'Silva and Ellen Snow, informing them of his receipt of the dismissal order and asking them to "advise what agreement[s], if any, Mary Carter or otherwise, that were entered into between Mr. Bertuzzi, the Vancouver Canucks et al and Mr. Crawford". At that time, Mr. Danson was not aware that there was also an agreement to dismiss the cross-claims between Bertuzzi and Orca Bay.

[18] Neither defendant responded to Mr. Danson's enquiry. The plaintiffs still did not know if there was an agreement. As a result, one of the motions argued on January 4, 2012 was a motion by the plaintiffs to "require the defendants to provide full details of any agreement[s], if any, Mary Carter or otherwise, that were entered into between" Bertuzzi, Orca Bay and Crawford, or any combination of them. The plaintiffs submitted that any such agreement would change the landscape of the trial. Of course, not having seen the agreement or even having its existence confirmed, the plaintiffs were unable to file evidence on precisely how the landscape might change.

[19] The defendants filed no affidavits whatsoever in relation to this relief. At the hearing on January 4, 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 [page132] 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 23 and ordered the defendants to bring any such agreement for the court's inspection on the return date.

[20] Late in the day on January 20, the defendants' lawyers advised Mr. Danson that on January 23 the defendants would be asking me for an order on the consent of all defendants dismissing the cross-claims that each had against the other. Indeed, Mr. D'Silva, appearing for Orca Bay on January 23, made that request. [See Note 4 below] This was the first disclosure to Mr. Danson or to the court that there was any agreement between Bertuzzi and Orca Bay to dismiss their respective cross-claims and thus effectively end any adversity between them in this lawsuit.

[21] Unfortunately, this information had not been disclosed to me on January 4 when I agreed to the defendants' request to have Mr. Moore submit to neuropsychological examinations by each of their respective experts. [See Note 5 below] While the plaintiffs had argued that the defendants had no adversity on the issue of Moore's damages, the court was left with the inference (although not stated explicitly) that there remained adversity on the issue of liability and thus separate interests to protect. If I knew on January 4 what I learned on January 23 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 cross-claims, to my attention. I will have more to say about this when considering whether the agreement changes the landscape of the action. [page133]

[22] On the return of the motion on January 23, both defendants were represented by different lawyers (from the same firms) than those who commenced the argument on January 4. At the commencement of the hearing on January 23, the agreement was handed up to me for my review. This was the first acknowledgment by the defendants that any agreement existed between the defendants. The defendants, however, still maintained that there was no obligation to disclose any of the contents of the agreement.

[23] The defendants continued to assert settlement privilege and resist disclosure or production of the agreement. They claim settlement privilege is now a class privilege in Canada and the plaintiffs have failed to satisfy the onus on them to demonstrate that the agreement falls into one of the exceptions to the privilege.

[24] The plaintiffs continued to seek disclosure and production. They argued that the agreement changed the landscape of the action. They claim that settlement privilege is not yet a class privilege in Ontario, that the current state of the law requires the determination of the privilege on a case-by-case basis and that the defendants have failed to meet the onus on them to establish the four "Wigmore" criteria to establish the privilege in this case. They point out that the defendants filed no evidence whatsoever to support the privilege and, in particular, no evidence to indicate how disclosure may harm the relationship between Bertuzzi and Orca Bay or between Bertuzzi and Crawford, or how disclosure would prejudice the defendants or their settlement. The only "evidence" was the agreement itself passed to me for review. Although in submissions the defendants argued that non- disclosure would not create unfairness to the plaintiffs and that settlement privilege should be maintained, they made no submissions on how disclosure would prejudice or be unfair to the defendants. In the alternative, the plaintiffs assert that this agreement falls within one of the exceptions to settlement privilege.

[25] As I have determined to order production of the agreement, or at least most of it, I must in these reasons outline the essential nature of the agreement so as to justify my decision, while remaining somewhat circumspect about certain particulars for reasons to be explained.

[26] With those restrictions in mind, the minutes of settlement state in the preamble that that parties agree to "settle issues of liability" as between Bertuzzi, Orca Bay and Crawford. The operative part of the agreement provides for a specified percentage apportionment and payment by Bertuzzi, by Orca Bay and [page134] by Crawford of any monetary award regardless of any finding or apportionment of liability made in the action. Funding of any settlement would be on the same basis. I would consider this to be a "proportional sharing agreement". The precise agreed percentages should not be revealed by me at this time for two reasons. Firstly, I will be imposing certain confidentiality terms with respect to the disclosure. Secondly, they should not be disclosed in case an appeal court takes a different view of this matter. There is an agreement by Bertuzzi and Orca Bay to release each other from liability and not pursue any cross-claims as well as an agreement by Bertuzzi and Crawford to release each other from liability, not pursue claims against each other and consent to a dismissal of the third party claim. The parties agreed that the terms of the agreement would remain strictly confidential without the consent of all parties thereto "or as required by law". The parties agreed that the minutes of settlement and releases were not in any way an admission of liability.

[27] On February 10, 2012, while this motion was under reserve, I signed the order requested by the defendants dismissing the cross-claims by Bertuzzi against Orca Bay and by Orca Bay against Bertuzzi. The plaintiffs agreed they had no status to oppose the order sought. The Law on Settlement Privilege: Class Privilege or Case by Case?

[28] Two Ontario Divisional Court cases differ on whether settlement privilege is a class privilege or must be established on a case-by-case basis. In Ontario (Liquor Control Board) v. Magnotta Winery Ltd. [See Note 6 below] ("Magnotta"), the Divisional Court determined that settlement privilege is not yet a class or absolute privilege in Ontario and must be established by a case-by-case analysis applying the four-part Wigmore test. [See Note 7 below] That test requires the party asserting the privilege to establish the following four conditions:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) The element of confidentiality must be essential to the maintenance of the relationship in which the communications arose. [page135]

(3) The relationship must be one which, in the opinion of the community, ought to be "sedulously fostered".

(4) The injury caused to the relationship by disclosure of the communications must be greater than the benefit gained for the correct disposal of the litigation. [See Note 8 below]

[29] When considering the four Wigmore factors in relation to settlement agreements, the first three factors are usually agreed upon or assumed, i.e., that settlement documents originate in a confidence they will not be disclosed (particularly as here, where the document itself expressly provided for such confidentiality), that confidentiality is essential to the maintenance of the settlement negotiation process and that the relationship (encouraging the negotiation of settlements) ought to be sedulously fostered. [See Note 9 below] Typically, the real dispute is determining whether the fourth criterion is met, i.e., whether the benefit gained for correct disposition of the litigation is greater than the injury caused to the relationship between the settling parties by disclosure of the agreement.

[30] The case-by-case analysis was said to be "particularly important in the following instances":

(a) where discussions have led to a settlement, the litigation has resolved, but an argument arises over the terms of the settlement;

(b) where the interests of third parties in other litigation might be affected; and,

(c) where there is a dispute over whether litigation was "in contemplation". [See Note 10 below] The plaintiffs submit that the situation here is analogous to the second example since the third party action is "other litigation" to the main action and the interests of the plaintiffs, who are not parties to the third party action, might be affected. A contrary viewpoint may suggest that the plaintiffs are strangers to the agreement, but not the litigation, which litigation encompasses the entirety of the dispute over the claims of Moore, including the main and third party action. I do not propose to resolve that issue for purposes of deciding this motion since I will be relying on the jurisprudence respecting Mary Carter-type [page136] agreements which do not concern themselves with this distinction. In any event, the list set out in Magnotta was not meant to be exhaustive.

[31] A few months later, a different panel of the Divisional Court in Inter-Leasing Inc. v. Ontario (Minister of Finance) [See Note 11 below] ("Inter-Leasing") suggested, without referencing Magnotta, that settlement privilege was a class privilege, although the court was dealing not with production of a settlement agreement, but rather communications respecting settlement negotiations. The court stated [See Note 12 below] that "[c]ommunications, whether oral or written, made in furtherance of the settlement of a litigious dispute are subject to privilege". They set out three conditions that must be present for settlement privilege to apply:

1. A litigious dispute must be in existence or within contemplation.

2. The communication must be made with the express or implied intention it would not be disclosed in a legal proceeding in the event negotiations failed.

3. The purpose of the communication must be to attempt to effect a settlement. The court added that "[a] party seeking to introduce in evidence material subject to settlement privilege must show that the communication is relevant and the disclosure is necessary, either to show the agreement of the parties or to address a compelling or overriding interest of justice". [See Note 13 below]

[32] In Johnstone v. Locke, [See Note 14 below] another case dealing with disclosure of communications during settlement negotiations, and before the release of the Court of Appeal decision in Magnotta, MacKinnon J. stated his preference for the reasoning in Inter-Leasing to that in Magnotta. The case highlights that there is a difference in the burden of proof depending which approach is adopted. If settlement privilege is not a class privilege and must be established on a case-by-case basis, then there is a presumption of disclosure and the onus is on the party asserting the privilege (the defendants, in the matter before me) to establish that the four Wigmore criteria have been established. If settlement privilege is a class privilege, then the privilege applies to protect disclosure of the agreement unless the parties seeking disclosure [page137] (the plaintiffs, in the matter before me) establish that the case falls within an exception to the privilege. [See Note 15 below]

[33] There have been certain specific exceptions to settlement privilege in the jurisprudence, most of which are inapplicable to the matter before me; however, the appropriate exceptions have been broadly described as "where the settlement documentation is necessary for the proper disposition of a proceeding" [See Note 16 below] or "where disclosure is necessary either to show the agreement of the parties or to address a compelling or overriding interest of justice". [See Note 17 below]

[34] In R. v. McKinnon, [See Note 18 below] the Divisional Court again looked at the issue but did not find it necessary to decide whether settlement privilege was a class privilege as it found the settlement documentation would be admissible under either the Wigmore criteria or as an exception to the class privilege. [See Note 19 below] The Divisional Court noted that in any case the issue would be before the Court of Appeal in Magnotta later in the year.

[35] The Court of Appeal in Magnotta then released its ruling. It upheld the Divisional Court describing its reasons as "thoughtful" and "detailed", [See Note 20 below] but because the issue was decided on grounds other than settlement privilege, did not address whether settlement privilege is a class or case-by-case privilege.

[36] The two lines of authority from the Divisional Court were more recently considered by Strathy J. in Ipex Inc. v. AT Plastics Inc. subsequent to the release of the appeal decision in Magnotta. Strathy J. determined that the same result would occur whether he used the case-by-case approach or an exception to the class privilege. He stated that the real issue in the case-by-case approach was determination of the fourth Wigmore criterion -- whether the injury to the relationship of the parties who engaged in settlement negotiations by disclosure of the settlement agreement is greater than the benefit to be achieved by the correct disposition of the litigation. [See Note 21 below] [page138]

[37] To make such determination "calls for a balancing of the rights and confidentiality expectations of the parties to the settlement against the rights of the party seeking disclosure to properly meet the case against it". [See Note 22 below] Strathy J. also points out that in considering the rights and confidentiality expectations of the parties to the settlement, "the purpose of the settlement privilege was to prevent disclosures of offers of settlement only when the disclosure was to show that a party had made an admission of liability or had acknowledged that it had a weak case . . . Parties can reasonably expect that admissions of liability or confessions of weakness will not be used against them, by the opposite party or by third parties in future litigation." [See Note 23 below]

[38] Finally, in Ipex, Strathy J. states that disclosure of settlement documents in appropriate cases "engages the fundamental principle of our legal system that a party is entitled to know the case it must meet and must be given a fair opportunity to meet that case . . . It provides the parties with the 'equality of arms' which is so fundamental to our concept of a fair trial . . . ." [See Note 24 below] The same result is achieved even if settlement privilege is considered as a class privilege when considering the exception that disclosure is "necessary to address a compelling or over-riding interest of justice", such as when disclosure is necessary to permit a party to meet the case against it. [See Note 25 below] In my view, the same reasoning applies when disclosure in necessary to permit a party to effectively present its case.

[39] I must therefore consider, in the case-by-case approach, whether the defendants have satisfied me that the injury caused to the relationship between the defendants by disclosing the settlement agreement is greater than the benefit gained for correct disposal of the litigation or in the class privilege approach whether the plaintiffs have satisfied me that disclosure is necessary to address a compelling or overriding interest of justice and thus fall into an exception to the privilege. I am also informed by the need to balance the expectations of the defendants with the needs of the plaintiff to conduct a fair trial and provide the plaintiffs with an equality of arms. The ultimate determination to be made in this case is [page139] similar whether the class privilege exception or the case-by-case approach is used, but the onus falls on different parties. I would come to the same conclusion in the circumstances of this case whichever approach is used. The Law: Disclosure of Mary Carter-Type Agreements

[40] None of the above cases discussing whether settlement privilege is a class privilege or must be determined on a case- by-case basis considered the situation where two or more but not all parties to an action signed an agreement to resolve their differences and disclosure was sought by the non-settling parties. There has, however, been a body of case law dealing with such agreements, including decisions of the Ontario Court of Appeal. Most but not all of these decisions dealt with settlements between the plaintiffs and one or more but not all defendants, typically agreements that ensured the plaintiffs a sum certain from the settling defendants and in turn limited the exposure of the settling defendants. These were typically "Mary Carter" or other similar agreements. In those cases, disclosure was sought by the non-settling defendants. This situation differs as the agreement is among all defendants and the only third party on how to apportion liability and it is the plaintiffs who seek disclosure. Nonetheless, the jurisprudence provides considerable guidance.

[41] A Mary Carter Agreement ("MCA") is a "type of agreement which partly settles a lawsuit". [See Note 26 below] In a MCA, the plaintiffs settle with one or more but not all defendants and the action continues against the non-settling defendants. The settling defendants pay or agree to pay a sum certain to the plaintiffs but remain in the action and continue their cross-claims. The plaintiffs are guaranteed that sum and the settling defendants' liability is limited to that sum. The plaintiffs stand the chance of bettering that recovery against the non-settling defendants and depending on the specific agreement, the settling defendants may have an opportunity to recover some of the money paid if the plaintiff succeeds in recovering more than the contracting defendants paid. [See Note 27 below] A Pierringer Agreement ("PA") is similar except that the settling defendants are removed from the action in that the plaintiff limits its recovery against the non-settling defendants to their several liability and typically indemnifies the settling defendants against any claims over by [page140] the non-settling defendants while the settling defendants typically do not continue their cross-claims against the non- settling defendants. [See Note 28 below] Both are referred to as "proportionate share agreements". [See Note 29 below] There can be other similar forms of agreements that may not exactly mirror a typical MCA or PA. [See Note 30 below] For purposes of this endorsement, the distinctions have no relevance and I will refer to all agreements between plaintiffs and settling defendants as MCAs.

[42] The earliest case to which I have been referred, Bodnar v. Home Insurance, is actually not a MCA, but, like the matter before me, involves an agreement between the defendants to which the plaintiffs sought access. Master Quinn was asked to set aside a summons to a lawyer through whom evidence was sought of an agreement entered into between the defendants which, it was alleged, "may affect the conduct of this action". The nature of the agreement is not set out in the decision. Master Quinn stated as follows: [See Note 31 below]

The alleged agreement in issue may not be a true "Mary Carter Agreement" but in my opinion the same principle should apply that any secret agreement between two or more parties which may affect the outcome of the litigation should be revealed to the other counsel and the Court.

[43] In Pettey v. Avis Car Inc., Ferrier J. was required to consider whether a mid-trial MCA was champertous and an abuse of process. While he held the agreement was valid, that part of the decision relevant to the matter before me dealt with the requirement of disclosure of the MCA to the non-settling defendants and the reasons for immediate disclosure: [See Note 32 below]

The agreement must be disclosed to the parties and to the court as soon as the agreement is made. The non-contracting defendants must be advised immediately because the agreement may well have an impact on the strategy and line of cross- examination to be pursued and evidence to be led by them. The non-contracting parties must also be aware of the agreement so that they can properly assess the steps being taken from that point forward by the plaintiff and the contracting defendants. In short, procedural fairness [page141] requires immediate disclosure. Most importantly, the court must be informed immediately so that it can properly fulfil its role in controlling its process in the interests of fairness and justice to all parties. Ferrier J. held that while disclosure of all other terms of the agreement must be disclosed to the parties and to the court, disclosure of the dollar amounts of the settlement would remain in the discretion of the court.

[44] In Leadbetter v. Penncorp Life Insurance Co., [See Note 33 below] Pardu J. cited with approval the above passages by Master Quinn and Ferrier J. in determining that a settlement with one defendant of future disability benefits must be disclosed to the non-settling defendants against whom the action was continuing for past benefits.

[45] In Williams v. Douglas, [See Note 34 below] Master Haberman quotes from an unreported decision of Ground J. in Noldin v. Prince [See Note 35 below] as follows:

[W]hereas a settlement agreement between some of the parties to an action would prima facie be relevant to the remaining parties to the action, settlement privilege is applicable to settlement agreements and the exception to such privilege would only extend to the particulars of settlement which are relevant to the on going issues in the action. The court must, in determining what particulars are to be disclosed, strike a balance between potential prejudice to the remaining defendants and the rights of the settling parties to confidentiality in terms of their settlement. The decision was also quoted by Master Graham in Wong v. Second Cup Ltd., who confirmed that settlement documents which "affected the rights of the non-settling parties" should be produced, but only the portions "relevant to the ongoing [action]". He added: "The fact of the settlement must always be disclosed. Whether the documents relating to the settlement must also be disclosed depends on their relevance." [See Note 36 below]

[46] In SNC-Lavalin Profac Inc. v. Sankar, Master Glustein cites with approval the passages above quoted in Bodnar and in Pettey and concludes: [See Note 37 below] [page142]

Any agreement between two or more parties which may affect the outcome of the litigation should be revealed to the other counsel and the court . . . Further, when parties shift their position from their pleadings, a settlement agreement may be considered by the trial judge in assessing credibility[.]

The non-settling defendants have a right to review the settlement agreements to the extent that "they may well have an impact on the strategy and line of cross-examination to be pursued and evidence to be led by them" . . . Disclosure would be required even if the terms of the settlement agreement were confidential[.]

[47] The issue of disclosure of MCAs was then considered by two decisions of our Court of Appeal. In Laudon v. Roberts, [See Note 38 below] the court was considering whether a plaintiff had to deduct from a jury's damage award the payments received pursuant to a MCA. While the court determined that the payments were deductible to avoid double recovery, it is the portion of the judgment dealing with disclosure that is relevant to the matters before me. The court stated:

The existence of a MCA significantly alters the relationship among the parties to the litigation. Usually the position of the parties will have changed from those set out in their pleadings. It is for this reason that the existence of such an agreement is to be disclosed, as soon as it is concluded, to the court and to the other parties to the litigation. [See Note 39 below]

[48] They added that the reason for immediate disclosure was that set out by Ferrier J. in Pettey, quoted earlier but repeated here for completeness as set out by the Court of Appeal in Laudon: [See Note 40 below]

The answer is obvious. The agreement must be disclosed to the parties and to the court as soon as the agreement is made. The non-contracting defendants must be advised immediately because the agreement may well have an impact on the strategy and line of cross-examination to be pursued and evidence to be led by them. The non-contracting parties must also be aware of the agreement so that they can properly assess the steps being taken from that point forward by the plaintiff and the contracting defendants. In short, procedural fairness requires immediate disclosure. Most importantly, the court must be informed immediately so that it can properly fulfil its role in controlling its process in the interests of fairness and justice to all parties.

[49] In Aecon Buildings v. Brampton, [See Note 41 below] the Court of Appeal stayed a third party action where a settlement agreement [page143] between the plaintiff and defendant was not immediately disclosed. The plaintiff and defendant agreed to settle the plaintiff's claim by having the plaintiff issue a statement of claim and having the defendant issue a third party claim. The plaintiff agreed to restrict its recovery to whatever amount the defendant may recover from the third party. It is thus not a MCA, but is an agreement between two parties that affected the rights of non-settling parties. The agreement was not delivered to the third party until three months after it was signed.

[50] The court stated with respect to the requirement to immediately deliver a copy to the non-settling parties:

We do not endorse the practice whereby such agreements are concluded between or among various parties to the litigation and are not immediately disclosed. While it is open to parties to enter into such agreements, the obligation upon entering such an agreement is to immediately inform all other parties to the litigation as well as to the court. [See Note 42 below] [Emphasis in original]

[51] The court cited with approval [at para. 13] what it had said in Laudon [at para. 39]: "The existence of a MCA significantly alters the relationship among the parties to the litigation. Usually the position of the parties will have changed from those set out in their pleadings. It is for this reason that the existence of such an agreement is to be disclosed, as soon as it is concluded, to the court and to the other parties to the litigation."

[52] The court added:

The reason for this is obvious. Such agreements change entirely the landscape of the litigation. [See Note 43 below] The plaintiffs in the matter before me argue that the agreement between the defendants changes the landscape of this action.

[53] The defendants in the matter before me argued that the plaintiff was only speculating that there was an agreement between the defendants. That is addressed by the Court of Appeal in Aecon as follows:

Other parties to the litigation are not required to make inquiries to seek out such agreements. The obligation is that of the parties who enter such agreements to immediately disclose the fact. [See Note 44 below]

[54] As to the remedy of staying the claim against the non- settling parties due to the failure to immediately disclose the [page144] agreement, even in the absence of demonstrated prejudice, the court stated:

Here, the absence of prejudice does not excuse the late disclosure of this agreement. The obligation of immediate disclosure is clear and unequivocal. It is not optional. Any failure of compliance amounts to abuse of process and must result in consequences of the most serious nature for the defaulting party . . . Only by imposing consequences of the most serious nature on the defaulting party is the court able to enforce and control its own process and ensure that justice is done between and among the parties. To permit the litigation to proceed without disclosure of agreements such as the one in issue renders the process a sham and amounts to a failure of justice. [See Note 45 below]

[55] Finally, I take a look at the decision of Master MacLeod in Noonan v. Alpha-Vico. [See Note 46 below] As a result of a fatal accident at school, the plaintiffs started two separate actions, one against the school board and the second a products liability action against the manufacturer of the defective equipment. The plaintiffs settled with the school board and the products liability defendants wanted production of the settlement agreement. Master MacLeod decided that the principles that apply to disclosure of "proportionate liability settlement agreements" [See Note 47 below] also referred to as "proportionate share settlements" [See Note 48 below] such as MCAs or PAs applied despite the fact that two separate actions were involved and despite the fact that in the products liability action the plaintiffs limited their claims to the several liability of those defendants.

[56] Master MacLeod outlines three reasons why terms of proportionate share agreements must be disclosed to other parties in the litigation. Firstly, he considers the relevance of disclosure of the amounts paid. He concluded that amounts received in partial settlement are relevant to the issues in dispute in order to demonstrate mitigation and avoid double recovery. [See Note 49 below] (That of course is not relevant to the matter before me.) Disclosure of the settlement amounts "is also critical to litigation planning and strategy. In general a defendant is entitled to know what the actual amounts in dispute are so that informed decisions may be made about whether to defend or offer to settle and what procedures may or may not be justified." [See Note 50 below] [page145]

[57] Secondly, Master MacLeod considers the relevance of other possible terms of a partial settlement. For example, it would be relevant if the settling defendant has agreed to preserve its documents, to share its documents or witnesses with the plaintiff, to restrict or not restrict access to such documents or information or to co-operate or not to co-operate with the non-settling defendants. This is important for the non-settling parties to know so they can bring appropriate production or preservation motions or factor this into a discovery plan. [See Note 51 below] This is of limited relevance to the matter before me since none of these terms are explicitly set out in the settlement agreement signed by the defendants and third party and I have no evidence that such terms should be implied.

[58] Master MacLeod gives a third reason why production of such agreements is necessary, which in my view is relevant to the matter before me:

Finally, it is fundamental to the operation of the adversary system that all parties know who is adverse in interest. This problem is particularly acute in Mary Carter type agreements because the settling defendant remains in the action but its position may be significantly different than that set out in the pleadings . . . It will be relevant to know whether or not the settling defendants retain a financial or other interest in the outcome of the litigation. It will also be important to know how the settlement might influence the position taken by the plaintiffs and the plaintiffs' witnesses at trial. The terms of settlement are thus broadly relevant to the conduct of the litigation. [See Note 52 below]

[59] While negotiations leading up to the settlement would not have been disclosed, the settlement agreement itself was "a contract entered into between the settling parties which is relevant to the remaining action with the non settling parties" and was not privileged. He did, however, determine that there may be terms of the agreement that need not be disclosed either because they "are irrelevant to the litigation" or that "might disclose information otherwise privileged". [See Note 53 below] He then reviewed the agreement, as I have done, and he found the entire agreement relevant and not privileged. In the agreement before me, I have found two related provisions outside the scope of relevance to the litigation itself and which will be redacted.

[60] The relief granted by Master MacLeod also helps inform me as to the appropriate order I should make. He ordered that [page146] the agreement be provided to the non-settling parties marked confidential, that it was not to be disclosed to any non-party to the litigation and that it would be provided to the trial judge in a sealed envelope for use of the court. A similar order may be appropriate here, subject of course to it becoming relevant to a pre-trial issue, which will be discussed further in these reasons.

[61] In each of Bodnar, Pettey and Leadbetter, the court considered what is now part of the commentary to rule 4.01 of the Rules of Professional Conduct to support their decision to require disclosure. That commentary provides:

In civil proceedings, the lawyer has a duty not to mislead the tribunal about the position of the client in the adversary process. Thus, a lawyer representing a party to litigation who has made an agreement or is party to an agreement made before or during the trial by which a plaintiff is guaranteed recovery by one or more parties notwithstanding the judgment of the court, should immediately reveal the existence and particulars of the agreement to the court and to all parties to the proceedings.

[62] Although the second sentence is a reference to MCAs or similar proportionate share agreements that guarantee some recovery to a plaintiff, the first sentence is of much broader application: "In civil proceedings, the lawyer has a duty not to mislead the tribunal about the position of the client in the adversary process." In Pettey, Ferrier J. was dealing with a true MCA and stated that the commentary "was specifically enacted to take account of Mary Carter type agreements. While the Law Society Rules of Professional Conduct do not bind the court, they ought to be given significant weight in consideration of the issues." [See Note 54 below] In Leadbetter, Pardu J. found the comments in Pettey apposite in dealing with an agreement which was not a MCA (since the settling defendant was being taken out of the action). [See Note 55 below]

[63] Bodnar is the only case brought to my attention where the commentary was considered in circumstances where the agreement was between defendants and not between the plaintiff and some defendants. It is unclear how the commentary read in 1987 at the time of Bodnar since Master Quinn quotes only the second sentence. Even without the broad wording of the first sentence, the master concluded that even though the agreement before him was not one as contemplated in the commentary, "[i]f the alleged agreement is secret and may affect the proceedings [page147] by analogy to [the] commentary . . . it should be revealed to the Court and all parties". [See Note 56 below]

[64] After reviewing all of the case law presented to me, I find myself sharing the view of Master Quinn in Bodnar that "any secret agreement between two or more parties which may affect the outcome of the litigation should be revealed to the other counsel and the Court" whether or not it is a Mary Carter-type agreement. Master Quinn ordered two defendants who made a secret agreement to reveal it to the non-settling plaintiff. Like Bodnar, the matter before me is a secret agreement between two previously adverse defendants and a third party on how liability would be divided among them whatever the court may determine. The question is -- whether it is an agreement "which may affect the outcome of the litigation".

[65] I find a similar result when I look at the reasons given by the courts, including the Court of Appeal, for disclosure of MCAs and similar agreements entered into between plaintiffs and some but not all defendants. Such agreements have been ordered produced because

-- they change the landscape of the litigation; [See Note 57 below]

-- they alter the relationship among the parties to the agreement from those set out in the pleadings; [See Note 58 below]

-- to permit the court to fulfill its role in controlling its process in the interests of fairness and justice to all parties; [See Note 59 below]

-- a party is entitled to know the case it must meet and must be given a fair opportunity to meet that case. Disclosure of a settlement agreement provides the parties with the "equality of arms" which is so fundamental to our concept of a fair trial; [See Note 60 below]

-- it is fundamental to the operation of the adversary system that all parties know who is adverse in interest, particularly [page148] when their position is different from that set out in their pleadings. [See Note 61 below]

[66] The cases have given some examples of how such agreements may change the landscape of the litigation, alter the relationship of the parties or affect the outcome of the litigation. They go beyond the example in MCAs of avoiding double recovery. For example,

-- when parties shift their position from their pleadings, the settlement agreement may be considered by the trial judge when assessing credibility; [See Note 62 below]

-- the agreement may impact the strategy and line of cross- examination to be pursued and evidence to be led by the non-settling parties; [See Note 63 below]

-- any terms of an agreement to co-operate or not co-operate with certain parties, preserve evidence, share documents or provide access to witnesses or the opposite could be relevant to the non-settling party to bring appropriate production, preservation or examination orders. [See Note 64 below]

[67] In my view, the above list of how such settlement agreements could change the landscape of the litigation is not exhaustive. For example, where defendants are no longer adverse and have agreed on how liability will be divided no matter the apportionment by the court, they could be seen as working together on "one side" except with separate lawyers. Without predetermining any of these issues, and without attempting to provide an exhaustive list, such agreements could have the following effect on the landscape of the proceeding:

-- It may affect the rights of the formerly adverse defendants to cross-examine each other's witnesses;

-- it could affect the right of multiple defendants to cross- examine the plaintiff and his witnesses; [page149]

-- it could affect the application of the three-expert rule under s. 12 of the Evidence Act, R.S.O. 1990, c. E.23 since only three experts may be called "upon either side" without leave;

-- if a proportional sharing of liability has been predetermined by the defendants, the judicial determination of that issue in ignorance of the agreement could be considered a sham;

-- no longer being able to rely on adversity among defendants could affect the plaintiffs' preparation for trial. For example, it may require them to take steps to ensure that necessary evidence, which may no longer be called by the defendants, is before the court;

-- it could affect certain pre-trial motions, such as motions by each defendant for separate defence expert examinations in the same speciality. As will be discussed, that is a live issue in this action;

-- knowing how liability is divided could affect the way that plaintiffs and the pre-trial judge conduct pre-trial conferences. The same could be said for Rule 49 settlement offers and mediation. Analysis: Should the Agreement be Disclosed?

[68] Prior to amendments to the statement of claim, the cause of action against Orca Bay was for vicarious liability for Bertuzzi's assault. After the statement of claim was amended by order dated February 1, 2008 to include specific allegations of Orca Bay management encouraging retribution against Moore, both before the March 8, 2004 game (Burke and Crawford "calling out" to Canuck's players) and between periods (Crawford telling players Moore had to "pay the price"), a third party claim was issued by Bertuzzi against Crawford and Orca Bay amended its statement of defence. Orca Bay and Bertuzzi had already included cross-claims against each other with their statements of defence and that did not change with the amendments. In the third party claim, Bertuzzi pleaded that as a Canucks player he had to take direction from Crawford. Crawford denied ordering retribution and pleaded that he told Bertuzzi to get off the ice before the assault. Orca Bay, in its amended defence, denied any encouragement of retribution, pleaded that Bertuzzi instigated the fight with Moore on his own and independent of management or coaching staff. They denied both direct liability as well as vicarious liability for Bertuzzi's actions. Amended pleadings were complete by July 2008. [page150]

[69] At that point, Bertuzzi blamed Crawford (for whom Orca Bay may be liable) and Orca Bay (and Crawford) blamed Bertuzzi alone for the injuries to Moore. Given the third party claim and the two cross-claims, there was clearly an adversity of interests as to liability as between Bertuzzi and Orca Bay and as between Bertuzzi and Crawford. The position in the pleadings was supported by Bertuzzi in his examination for discovery and by Orca Bay in the examination for discovery of Nonis.

[70] The adversity came to an end on July 13, 2011, when the minutes of settlement were signed and each of Orca Bay, Bertuzzi and Crawford agreed to release each other, agreed to dismiss the third party claim and all cross-claims and agreed on how liability would be allocated among them in the event of judgment or settlement no matter how the court allocated liability. In my view, this is a form of proportional sharing agreement.

[71] The defendants refused or neglected to tell the plaintiffs about the agreement. Mr. Danson had his first hint of a possible settlement when he learned in September 2011 that the third party claim had been dismissed. Still, the defendants refused Mr. Danson's request to disclose either the existence or contents of any agreement. Mr. Danson first learned that the cross-claims were to be dismissed just prior to the January 23, 2012 motion and the existence (but not the contents) of an agreement was first disclosed on January 23, when it was handed up to me for my review as part of the determination of whether it should be disclosed to the plaintiffs. The plaintiffs are first learning of some of the contents of the agreement in this endorsement.

[72] In my view, the agreement has changed the landscape of the litigation. It has done so in a number of ways.

[73] Firstly, it has altered the relationship among the parties from that set out in the pleadings. Although the cross- claims are dismissed, the respective statements of defence have not been changed. Most importantly, Orca Bay's statement of defence continues to deny that Canucks' management and coach encouraged retaliation either before or during the game; states that Bertuzzi's assault was instigated on his own, independent of management or directions by Crawford; and denies vicarious liability for Bertuzzi or direct liability. Thus, the position of Orca Bay following the settlement is at odds with the position taken in its statement of defence.

[74] This in turn could give rise to issues affecting the conduct of the trial. Each of Bertuzzi and Nonis (or other Orca Bay management), if they give evidence, could be cross-examined by the plaintiffs as to credibility respecting changes in position from that set out in their pleadings and any incentives given or other [page151] reasons for such change. They could also be cross-examined respecting any change from positions and evidence given at examinations for discovery.

[75] The jury may assess Bertuzzi's credibility differently if they knew he had a financial incentive to dismiss his third party claim against Crawford as well as his cross-claim against Orca Bay. There was some discussion at the hearing of the motion whether there was a financial incentive given to Bertuzzi. Clearly, there is nothing in the agreement indicating a direct payment of moneys to Bertuzzi; however, in my view, the agreement by Orca Bay to assume a proportionate share of the damages awarded, no matter how liability is assessed by the jury, even if no liability is found as against Orca Bay, could be considered a financial incentive, or at least consideration, to Bertuzzi to drop his third party claim against Crawford.

[76] Since Orca Bay and Bertuzzi are not only no longer adverse, but actually aligned in interest, not only on damages but also on liability, having predetermined how liability will be split, the trial judge may consider whether and to what extent the lawyers for both defendants have rights to cross- examine Moore and his witnesses. Similarly, can Bertuzzi and Orca Bay cross-examine each other's witnesses? Would Mr. D'Silva be prohibited from asking questions of Bertuzzi if he is called by Mr. Adair to give evidence? Would Mr. Adair be prohibited from asking questions to Nonis or Burke if they are called as witnesses by Mr. D'Silva?

[77] In a similar vein, the application of the three-expert rule under s. 12 of the Evidence Act may be affected since only three experts may be called "upon either side". Are Bertuzzi and Orca Bay one side or two? This may be particularly salient if each wishes to call an expert on the same issue, whether it is separate neuropsychologists giving expert evidence on Moore's ability to work or separate hockey experts opining on Moore's lost hockey career or on what conduct constitutes "crossing the line".

[78] It is not my role to determine these questions; however, without disclosure to the plaintiffs and the trial judge, these issues would not even be considered.

[79] The plaintiffs and the trial court must know about the agreement to properly control the trial in the interests of fairness and justice to all parties. It is fundamental to the operation of the adversary system that all parties know who is adverse in interest. Disclosure of the agreement provides the plaintiffs with equality of arms with the defendants so that they can properly conduct their case, a fundamental concept to a fair trial. [page152]

[80] Further, the court must be made aware that there is an agreement in effect to proportionally divide liability no matter what is determined by the trier of fact as the appropriate division of liability. (No contributory negligence is pleaded against Moore for the incident.) It could be considered an abuse of the judicial process for a court to go through the judicial exercise of determining a liability split when it will be of no effect, the defendants having already determined what the split will be no matter what the court decides. The judicial determination of a liability split would be a sham. The trial judge should have the opportunity to determine whether it is necessary to go through that charade.

[81] Disclosure also affects the landscape of pre-trial procedures and trial preparation.

[82] Dealing first with pre-trial procedure, this is illustrated with clarity in the motion determined by me on January 4, 2012 to permit each of Bertuzzi and Orca Bay to have neuropsychological assessments by their own separate experts. This determination was made before the defendants disclosed either the existence of a proportional sharing agreement or that they had agreed to dismiss their respective cross-claims against each other. That there was an agreement to end adversity between the defendants was known to both defendants' counsel on January 4, but it was not known to the plaintiffs or to me. Although the plaintiffs argued in opposition to that order that the defendants had a common interest "on damages", they did not ague, because they did not know, that the defendants also had a common interest on liability.

[83] Although neither counsel for the defendants stated this explicitly, the court was left with the inference that each defendant was adverse in interest to the other and had a separate interest to protect. I raised the "separate interest" issue with counsel during argument and neither counsel advised me that that inference was no longer correct. I repeat the commentary to rule 4.01 of the Rules of Professional Conduct: "In civil proceedings, the lawyer has a duty not to mislead the tribunal about the position of the client in the adversary process." Further, it is one of the Principles of Professionalism for Advocates published by the Advocates' Society, under the heading "An Advocate's Duty to the Court", that advocates should not knowingly engage in conduct "calculated to induce the court to act under a misapprehension of the facts". [See Note 65 below] I do not suggest that the lawyers deliberately [page153] attempted to mislead the court, but I do conclude that they had a duty to correct my misapprehension.

[84] My apprehension on January 4 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 examinations 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 speciality, it would be important for the plaintiffs and the court to know about the agreement before deciding such motion.

[85] Disclosure is also important for the plaintiffs' trial preparations. For example, liability for Moore's injuries would be easier to prove against Bertuzzi since he pleaded guilty to criminal charges of assault causing bodily harm. Proving liability, either direct or vicarious, against Orca Bay may be more difficult for the plaintiffs. With the equality of arms presented by disclosure of an agreement, and in particular the percentage sharing, the plaintiffs may (or may not) reconsider their strategy in proffering evidence against Orca Bay or the nature of that evidence.

[86] As another example, as Mr. Danson pointed out, the plaintiffs and Bertuzzi were "on the same side" with respect to proving Orca Bay's encouragement of retribution and Crawford's remarks between periods to make Moore "pay the price". To that end, the plaintiffs could reasonably have relied on Bertuzzi to give evidence, and possibly call his former teammates as witnesses to give evidence, at trial as to what Crawford said to the team in the confines of the players' dressing room. Given the removal of adversity and cross-claims and the pre- agreed liability sharing, the plaintiffs cannot rely on Bertuzzi even giving evidence at trial let alone calling former teammates. The plaintiffs may need to call Bertuzzi. They may not get co-operation from the teammates. Although the plaintiffs can read in Bertuzzi's discovery evidence as against Bertuzzi, the discovery evidence of Bertuzzi is not evidence against Orca Bay. Also, with the dismissal of the third party claim and the ending of adversity between Orca Bay and Bertuzzi, there may be no incentive for Orca Bay to call Crawford as a witness.

[87] Disclosure could also be of assistance in resolving the claim, for example, at the upcoming pre-trial conference, given [page154] the agreement to proportionally share any settlement. It may also affect how the plaintiffs frame any offer to settle as against one or both defendants or how they may respond to offers made by one or all defendants.

[88] The defendants argue that if I accept the plaintiffs' argument and order disclosure, it would mean that all settlement agreements, at least as among defendants, would need to be disclosed. That is not correct. It would only be agreements that change the landscape of the litigation. It may be that most if not all secret agreements that end adversity between defendants change their relationship from that set out in their pleadings and predetermine how liability will be allocated need to be disclosed. That, however, is not an issue I need to decide. I need only decide, as I have done, that this secret agreement among Bertuzzi, Crawford and Orca Bay changes the landscape of the litigation and must be disclosed.

[89] How does this tie into the test for settlement privilege? If settlement privilege is to be determined on a case-by-case basis, in my view the determination that the settlement agreement changes the landscape of the litigation and the effects thereof both at trial and in pre-trial procedures as outlined above establishes the benefit gained by disclosure for correct disposal of the litigation. Although to satisfy the fourth Wigmore criterion, this must be balanced by any evidence from the settling parties that the benefit to proper disposition of the litigation is outweighed by the injury caused to the relationship between the defendants by disclosure, the defendants have provided no evidence whatsoever except for the agreement itself handed up to the court. Even assuming the first three Wigmore factors are established, there is no evidence to address the fourth factor. The onus is on the defendants asserting the privilege to demonstrate any injury to the relationship of the defendants or to their settlement process by disclosure. There is no evidence that disclosure would damage their relationship or prejudice their ability to defend the action or that it would result in unfairness to them. The onus not being met, the defendants fail in establishing settlement privilege on a case-by-case basis.

[90] If settlement privilege is a class privilege, the determination that the settlement agreement changes the landscape of the litigation and the effects thereof, both at trial and in pre-trial procedures, meets the exception to settlement privilege of "where the settlement documentation is necessary for the proper disposition of a proceeding" or "where disclosure is necessary . . . to address a compelling or overriding interest of justice". The changed landscape with the end of adversity and its results as [page155] outlined in these reasons constitute an overriding interest of justice requiring disclosure of the agreement. Disposition

[91] I am ordering not only disclosure, but also production to the plaintiffs of the minutes of settlement showing the percentage allocation of liability agreed among the defendants and third party. It is clear from my reasons that knowing the percentage split could affect the plaintiffs' approach to the litigation and the evidence it may call as well as its approach to settlement. It will permit the plaintiffs to make an informed decision whether to pursue liability against all defendants with its attendant costs. It will permit a more meaningful pre-trial conference. Knowing the financial incentives or consideration, as set out in the percentage split among Bertuzzi, Orca Bay and Crawford, will permit the plaintiffs to conduct an effective cross-examination. As Master Macleod said in Noonan [at para. 52]: "The terms of settlement are thus broadly relevant to the conduct of the litigation." In short, production creates an equality of arms necessary for trial fairness. The percentage splits must also be disclosed since it would make any judicial apportionment of liability a sham.

[92] While it is necessary for the plaintiffs to have disclosure and production of the agreement, certain protective orders need to be made in two respects, such as was made by Master MacLeod in Noonan.

[93] Firstly, there is no public interest nor is it necessary to correct disposal of the litigation in permitting this agreement to be disclosed to non-parties to this action. The agreement is ordered to be produced as part of the discovery process and the parties and their lawyers are thus bound by the deemed undertaking in rule 30.1.01(3) not to use the evidence or information for purposes other than this proceeding. I will require that it be delivered to the plaintiffs marked confidential and not disclosed to any non-party. In the event, it is necessary to file the document or refer to its contents in any interlocutory proceeding then pursuant to rule 30.1(5) (a) the deemed undertaking will cease to apply. The court must ensure that the document or information is legitimately relevant to the issues on the motion before it becomes part of the public record. It must therefore be filed under seal until the judicial officer hearing the motion determines its relevance. I cannot imagine how it would be relevant on an interlocutory motion unless the defendants again attempt to "double team" the plaintiffs in seeking defence medical examinations or unless the plaintiffs seek relief from the failure to [page156] make immediate disclosure. Of course, it can be disclosed to the pre-trial judge.

[94] Secondly, it will be provided in a sealed envelope to the trial judge who will be advised it is an agreement to proportionally share liability, but it will be up to the trial judge whether to open the envelope and review the agreement and at what point in the trial and what use to make of the agreement.

[95] Finally, Master MacLeod indicated that upon review of the document the court could redact from production any portions found to be irrelevant to the conduct of the litigation or protected by a privilege. I find no other privilege to any portion of the agreement but two interrelated paragraphs, paras. 5 and 7 of the agreement, do not relate to or affect the conduct of the action, do not need not be disclosed and may be redacted.

[96] I have not made any specific order arising out of the defendants' failure to "immediately" disclose the agreement as required other than requiring disclosure at this time. This is without prejudice to the plaintiffs seeking other relief at or before trial if appropriate. As the Court of Appeal stated in Aecon: "The obligation of immediate disclosure is clear and unequivocal. It is not optional. Any failure of compliance amounts to abuse of process and must result in consequences of the most serious nature for the defaulting party." [See Note 66 below] Costs

[97] The plaintiffs were clearly successful on the motion to compel disclosure and production of the agreement. This was, however, but one aspect of the plaintiffs' motion. The balance of the plaintiffs' motion as well as motions by both defendants were heard and determined on January 4, 2012. The costs of all motions should be addressed together.

[98] If the parties are unable to agree on costs of the motions, I am prepared to receive brief submissions from the plaintiffs within 14 days of release of these reasons, brief responding submissions by both defendants within ten days of receipt thereof with a right to the plaintiffs of a very brief reply within another seven days. Any party seeking costs must include a costs outline (Form 57B) together with dockets (redacting any privileged information) and disbursement receipts. [page157] Order

[99] I hereby order as follows: (1) The defendants shall within eight days of release of these reasons provide to the lawyer for the plaintiffs a copy of the minutes of settlement signed on July 13, 17 and 18, 2011 in an envelope marked "confidential". The defendants may redact paras. 5 and 7 of the agreement before production. (2) The plaintiffs and their lawyers may not provide a copy of the minutes of settlement nor disclose the contents of the minutes of settlement, except to the extent already disclosed in these reasons, to any non-party to this action except with consent of the defendants or order of the court. (3) The minutes of settlement and contents thereof shall not be used for purposes other than this action except with the consent of the defendants or order of the court. (4) The minutes of settlement shall be provided in a sealed envelope at the commencement of trial to the trial judge who shall be advised it is an agreement by the defendants to proportionally share liability. Review, use or disclosure of the minutes of settlement at trial shall be within the discretion of the trial judge. (5) The minutes of settlement may be provided to the pre-trial judge for purposes of the pre-trial conference, but no copy provided to the pre-trial judge and no pre-trial memorandum referencing the terms of the minutes of settlement shall be left in the court file after completion of the pre-trial conference. (6) If it is necessary to file the minutes of settlement or to refer to the contents of the minutes of settlement, except as otherwise disclosed in these reasons, as evidence on any pre-trial motion, such evidence shall be filed under seal until the judicial officer hearing the motion determines whether the document is relevant to the motion.

Motion granted.

[page158] ADDENDUM February 28, 2012

[1] MASTER DASH: -- This addendum to my reasons dated February 15, 2012 is to address concerns raised by the defendants that paras. 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 motion or to vary the operative part of the February 15 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 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. 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 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 cross-claims 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 [page159] 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 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 endorsement that the commonality of interests on liability would have been a factor in my decision on January 4 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 order for two neuropsychological examinations.

[5] The defendants point out that the only submissions made by the plaintiffs' lawyer on January 4 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 cross-claims. 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 cross-claims 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. [page160]

[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 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 cross-claims had been before the courts on January 4, rather than disclosed just prior to the January 23 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 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 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.

Notes

Note 1: Moore v. Bertuzzi (2007), 2007 57934 (ON SC), 88 O.R. (3d) 499, [2007] O.J. No. 5113 (S.C.J.), at para. 2. This endorsement related to a motion by Bertuzzi to prohibit the plaintiffs from filing a copy of Bertuzzi's discovery transcript with the court as part of the plaintiffs' motion to compel Bertuzzi to answer questions refused at an examination for discovery and to amend pleadings.

Note 2: Moore v. Bertuzzi, [2008] O.J. No. 347, 164 A.C.W.S. (3d) 609 (S.C.J.).

Note 3: Although this issue was not raised on the motion, rule 37.07(1) requires service of a motion on "any party or other person who will be affected by the order sought". I question, but do not decide, whether Moore was a person affected by the order sought and whether he should have received notice of the motion.

Note 4: The order dismissing the cross-claims was not made on January 23, as Mr. Danson wished to reflect on whether he opposed the order or if he had status to do so. Subsequent to the hearing of the motion and while under reserve, Mr. Danson agreed he had no status to oppose the order. On February 10, 2012, the order was signed.

Note 5: The request was to have a joint testing protocol but separate clinical interviews so that each neuropsychologist could write a separate report.

Note 6: Ontario (Liquor Control Board) v. Magnotta Winery Ltd. (2009), 2009 92118 (ON SCDC), 97 O.R. (3d) 665, [2009] O.J. No. 2980 (Div. Ct.), affd (2010), 102 O.R. (3d) 545, [2010] O.J. No. 4453, 2010 ONCA 681 .

Note 7: Ontario v. Magnotta (Div. Ct.), supra, at paras. 48 and 51.

Note 8: Ontario v. Magnotta (Div. Ct.), supra, at para. 51, referencing Slavutych v. Baker, 1975 5 (SCC), [1976] 1 S.C.R. 254, [1975] S.C.J. No. 29, at p. 260 S.C.R.

Note 9: Ipex Inc. v. AT Plastics Inc., [2011] O.J. No. 3636, 2011 ONSC 4734, at para. 46; Ricci v. Gangbar, [2010] O.J. No. 4321, 2010 ONSC 5450, at paras. 16-20.

Note 10: Ontario v. Magnotta (Div. Ct.), supra, at para. 46.

Note 11: Inter-Leasing Inc. v. Ontario (Minister of Finance), 2009 63595 (ON SCDC), [2009] O.J. No. 4714, 256 O.A.C. 83 (Div. Ct.).

Note 12: Inter-Leasing Inc. v. Ontario, supra, at para. 10.

Note 13: Inter-Leasing Inc. v. Ontario, supra, at para. 11.

Note 14: Johnstone v. Locke, [2011] O.J. No. 5527, 2011 ONSC 7138, at para. 11.

Note 15: Johnstone v. Locke, supra, at paras. 2 and 14. See, also, Ipex v. AT Plastics, supra, at para. 45.

Note 16: R. v. McKinnon, [2010] O.J. No. 3001, 2010 ONSC 3896 (Div. Ct.), at para. 4.

Note 17: Inter-Leasing Inc. v. Ontario, supra, at para. 11.

Note 18: R. v. McKinnon, supra.

Note 19: R. v. McKinnon, supra, at paras. 4-6.

Note 20: Ontario (Liquor Control Board) v. Magnotta Winery Ltd. (C.A.), at para. 20.

Note 21: Ipex Inc. v. AT Plastics, supra, at para. 46.

Note 22: Ipex Inc. v. AT Plastics, supra, at para. 47. See, also, Ricci v. Gangbar, supra, at para. 21.

Note 23: Ipex Inc. v. AT Plastics, supra, at para. 49.

Note 24: Ipex Inc. v. AT Plastics, supra, at para. 55.

Note 25: Ipex Inc. v. AT Plastics, supra, at paras. 56 and 58.

Note 26: Laudon v. Roberts, [2009] O.J. No. 1824, 2009 ONCA 383, at para. 36.

Note 27: Laudon v. Roberts, supra, at para. 36.

Note 28: Noonan v. Alpha-Vico, 2010 ONSC 2720, [2010] O.J. No. 2807, 2010 ONSC 272 (S.C.J.-Master), at para. 29.

Note 29: Noonan v. Alpha-Vico, supra, at para. 28.

Note 30: Noonan v. Alpha-Vico, supra, at para. 28.

Note 31: Bodnar v. Home Insurance, [1987] O.J. No. 2365, 25 C.P.C. (2d) 152 (H.C.J.-Master), at para. 6(1).

Note 32: Pettey v. Avis Car Inc. (1993), 1993 8669 (ON SC), 13 O.R. (3d) 725, [1993] O.J. No. 1454 (Gen. Div.), at para. 32.

Note 33: Leadbetter v. Penncorp Life Insurance Co., [1999] O.J. No. 496 (Gen. Div.).

Note 34: Williams v. Douglas, [2003] O.J. No. 2435, 34 C.P.C. (5th) 109 (S.C.J.-Master), at para. 40.

Note 35: Noldin v. Prince, Court File 99-CL-003572, 34 C.P.C. (5th) 109 (S.C.J.), leave to appeal refused [2003] O.J. No. 1808 (Div. Ct.).

Note 36: Wong v. Second Cup Ltd., [2006] O.J. No. 3299, 150 A.C.W.S. (3d) 569 (S.C.J.-Master), at para. 15.

Note 37: SNC-Lavalin Profac Inc. v. Sankar, [2007] O.J. No. 1966, 157 A.C.W.S. (3d) 724 (S.C.J.-Master), at paras. 4-5.

Note 38: Laudon v. Roberts, supra.

Note 39: Laudon v. Roberts, supra, at para. 39.

Note 40: Laudon v. Roberts, supra, at para. 39.

Note 41: Aecon Buildings, a Division of Aecon Construction Group Inc. v. Brampton (City), [2010] O.J. No. 5630, 2010 ONCA 898.

Note 42: Aecon v. Brampton, supra, at para. 13.

Note 43: Aecon v. Brampton, supra, at para. 13.

Note 44: Aecon v. Brampton, supra, at para. 15.

Note 45: Aecon v. Brampton, supra, at para. 16.

Note 46: Noonan v. Alpha-Vico, supra.

Note 47: Noonan v. Alpha-Vico, supra, at para. 2.

Note 48: Noonan v. Alpha-Vico, supra, at para. 28.

Note 49: Noonan v. Alpha-Vico, supra, at paras. 46-48.

Note 50: Noonan v. Alpha-Vico, supra, at para. 49.

Note 51: Noonan v. Alpha-Vico, supra, at para. 51.

Note 52: Noonan v. Alpha-Vico, supra, at para. 52.

Note 53: Noonan v. Alpha-Vico, supra, at para. 56.

Note 54: Pettey v. Avis Car Inc., supra, at paras. 25 and 27.

Note 55: Leadbetter v. Penncorp, supra, at para. 15.

Note 56: Bodnar v. Home Insurance, supra, at para. 6.

Note 57: Aecon Buildings v. Brampton, supra, at para. 13.

Note 58: Laudon v. Roberts, supra, at para. 39.

Note 59: Pettey v. Avis, supra, at para. 32.

Note 60: Ipex Inc. v. AT Plastics, supra, at para. 55.

Note 61: Noonan v. Alpha-Vico, supra, at para. 52.

Note 62: SNC-Lavalin v. Sankar, supra, at paras. 4-5.

Note 63: Pettey v. Avis, supra, at para. 32.

Note 64: Noonan v. Alpha-Vico, supra, at para. 51.

Note 65: Paragraph 5 under "An Advocate's Duty to the Court" in Principles of Professionalism for Advocates (Toronto: Advocates' Society, April 2009).

Note 66: Aecon v. Brampton, supra, at para. 16.