ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-CV-39937B1
DATE: 2012/12/19

BETWEEN:

Ledcor Construction Limited
Plaintiff

– and –

Attorney General of Canada
Defendant

Ronald Price, for the Plaintiff

Ronald S. Petersen and Patrick A. Thompson, for the Defendant, Attorney General of Canada

– and –

Watson Macewan Inc.
Third Parties

– and –

Stantec Consulting Ltd., Wood Banani & Associates Limited and Rowan Williams Davies & Irwin Inc.
Fourth Parties

HEARD: December 19, 2012 (Ottawa)

REASONS FOR DECISION ON PRELIMINARY ISSUE

PARFETT J. (Orally)

[ 1 ] The issue before me is whether reference should be made in the Respondent’s materials to the opinion and recommendations of an evaluator hired by the parties to assist in resolving issues that had developed on the construction project.

[ 2 ] The Applicant has referred to Rule 24.1.14 of the Rules of Civil Procedure as the preeminent authority for the proposition that mediation discussions and recommendations are prima facie confidential. The Respondent argues that the process engaged in by the parties was not a true mediation and therefore Rule 24.1.14 does not apply.

[ 3 ] In my view, the important factor here is not what the parties called the process, but what the process actually was. It is clear from the documentation that both parties filed that the process was an effort to settle their disputes.

[ 4 ] As noted in The Law of Evidence in Canada , settlement discussions are privileged if they meet certain criteria, as follows:

• A litigious dispute must be in existence or within contemplation;

• The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and

• The purpose of the communication must be to attempt to effect a settlement.

[ 5 ] In this case, clearly the disputes were litigious, the final minute setting out the intention of the parties – SP019 – indicates that the parties intended the opinions to be without prejudice and the entire purpose of the process was to effect a settlement.

[ 6 ] Consequently, Mr. Davies’ reports and recommendations and any documentation provided to him by the parties, unless otherwise independently admissible, is privileged and not admissible on the summary judgment motion.

[ 7 ] The portions of the affidavit of Mr. St. Cyr that make reference to Mr. Davies’ opinion and the exhibits attached will be struck from the affidavit.

Madam Justice Julianne A. Parfett

Released: December 19, 2012 (delivered orally)

COURT FILE NO.: 07-CV-39937B1
DATE: 2012/12/19

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Ledcor Construction Limited Plaintiff – and – Attorney General of Canada Defendant – and – Watson Macewan Inc. Third Parties – and – Stantec Consulting Ltd., Wood Banani & Associates Limited and Rowan Williams Davies & Irwin Inc. Fourth Parties REASONS FOR DECISION ON PRELIMINARY ISSUE Parfett J.

Released: December 19, 2012 (delivered orally)