Hann v. The Forzani Group Ltd., 2015 ONSC 599

Ontario

Superior Court of Justice

Endorsement

Court File No.

4457/2008

Plaintiffs: FRANK HANN et al

Counsel: Wayne Stickland

Defendants: THE FORZANI GROUP LTD. et al

Counsel: Jeremy Shaw

Third Parties: BOAN BIKE (SHENZHEN) CO. LTD. et al

Counsel: Nicholas Robar

[1] Pursuant to the matters before this Court on January 26, 2015, Counsel for the moving party also seeks an order for the Plaintiffs to provide to the Defendants the complete LTD file from RBC, including a particularized list of items in their Schedule “A” and a particularized list of items that will not be produced as contained in RBC’s Schedule “B”, prior to February 26, 2015.

[2] Counsel for the Plaintiffs has raised two issues that should be decided on this motion. With respect to the first issue, it is my view that the question of whether the Defendants would be entitled to deduct benefits that the Plaintiff Frank Hann received from RBC, including settlement amounts, from damages that may be payable to him in this tort claim is a trial issue not central to my determination in this motion. That issue does not appear to be a foregone conclusion, however the real question is whether the Defendants are entitled to documents that are relevant to the issues arising in this tort action, even if they may not eventually be entitled to so deduct amounts received by Frank Hann from RBC.

[3] The second issue raised is whether settlement communications and documentation between the Plaintiff Frank Hann and RBC are immune from disclosure to the Defendants. The decision of the Supreme Court of Canada in Sable Offshore Energy Inc. v. Ameron International Corp. 2013 SCC 37, [2013] 2 S.C.R. 623 is relied upon in the submission for the Plaintiffs. I agree that settlement privilege wraps a protective veil around the efforts made to settle the LTD file; whereas communications made in the course of those negotiations is inadmissible and need not be produced here. However, I have determined that the RBC Supplementary List of Documents as referred to on page 2 of the correspondence dated October 3, 2014 (Tab X of the Affidavit of Elizabeth Felice sworn October 31, 2014), and as broken down into their Schedule “A” and Schedule “B”, is documentation that has potential relevance in this tort trial and therefore should not be immune from disclosure in the circumstances of this tort action brought by the Plaintiffs.

[4] Therefore, this Court Orders the Plaintiffs to provide to the Defendants, prior to February 26, 2015, the complete LTD file from RBC, including a particularized list of items in their Schedule “A” and a particularized list of items that will not be produced as contained in RBC’s Schedule “B”. For clarity, the moving party does not seek and is not entitled by this this Order to production of communications expressly pertaining to settlement negotiations, or those productions RBC asserts as covered by ongoing privilege.

[5] If the parties cannot agree on the issue of costs for these motions, I will entertain written submissions dealing with all aspects of the award of costs. Any party claiming costs shall serve and file written submissions and a bill of costs no later than 15 days from the date of this Endorsement. Any responding submissions shall be served and filed with 15 days thereafter.

February 4, 2015

The Honourable Mr. Justice D. J. Nadeau