COURT FILE NO.: CV-16-00562397-0000
MOTION HEARD: In-writing
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MANPREET SINGH, HARPREET SINGH and AMARJOT SINGH, Plaintiffs
AND:
BALBIR MANN, B. MANN TRANSPORT INC., SIMRATI SIMRATI and JAGDEV SINGH, Defendants
BEFORE: ASSOCIATE JUSTICE R. FRANK
COUNSEL: K. Kolnhofer and T. Jian for the Moving Parties/Defendants, Simrati Simrati and Jagdev Singh
S. Naiman for the Responding Parties/Plaintiffs and A. Rachlin and J. Pedro for the Responding Parties/Defendants, B. Mann Transportation Inc. and Balbir Mann
HEARD: In-writing
REASONS FOR DECISION
[1] This is an in-writing motion by the Defendants, Simrati Simrati and Jagdev Singh (the “Non-Settling Defendants”) for an order requiring production of a copy of a Pierringer agreement (the “Pierringer Agreement”) between the Plaintiffs and the Defendants, Balbir Mann and Mann Transportation Inc. (the “Settling Defendants”, and together with the Plaintiffs the “Settling Parties”) redacted only as to quantum.
[2] For the reasons and on the terms outlined below, the motion is granted.
OVERVIEW
[3] This action arises as a result of a motor vehicle accident that occurred in March 2016.
[4] The Plaintiff, Manpreet Singh, was a passenger in a vehicle owned by one of the Non‑Setting Defendants, Jagdev Singh, and operated by another Non‑Setting Defendant, Simrati Simrati. The passenger vehicle was struck by a transport truck operated by the Setting Defendant, Balbir Mann, and owned by the Setting Defendant, B. Mann Transport Inc.
[5] Examinations for discovery took place in October 2017. Mediation was held in February 2019, and the Plaintiffs filed their trial record in February 2019. A second mediation was held in February 2020 and a pre-trial and trial are scheduled for February 1, 2022 and April 4, 2022, respectively.
[6] In the fall of 2020, the Plaintiffs and the Settling Defendants partially settled this action by way of the Pierringer Agreement. The Plaintiffs advised the Non‑Setting Defendants of the settlement and provided the Non‑Setting Defendants with a copy of a draft amended statement of claim and a draft consent to remove the Settling Defendants from the action. As well, the Settling Defendants advised the Non‑Setting Defendants of their intention to bring a motion for the dismissal of the Non‑Setting Defendants’ crossclaim against the Setting Defendants.
[7] In response to the Plaintiff’s request for consent to amend the statement of claim, the Non‑Setting Defendants advised the Setting Parties that before the Non‑Setting Defendants confirm their position on the proposed amended statement of claim they require a copy of the Pierringer Agreement redacted for quantum.
[8] The Setting Parties have refused to produce the Pierringer Agreement redacted for quantum. The result is this in-writing motion by the Non‑Setting Defendants to compel its production.
POSITIONS OF THE PARTIES
[9] The Non-Settling Defendants take the position that it is settled law that they are entitled to the Pierringer Agreement, redacted as to quantum, and they seek its production. They submit that they face procedural prejudice as a result of the Pierringer Agreement and that the amendment of the statement of claim to remove the Setting Defendants pursuant to the terms of the Pierringer Agreement would be inherently prejudicial to them.
[10] The Settling Parties submit that the Pierringer Agreement and its terms are privileged. They submit that their only obligation is to disclose the existence of the Pierringer Agreement and its “essential terms”. They take the position that the essential terms have been disclosed through the draft amended statement of claim provided to the Non‑Setting Defendants and that the Pierringer Agreement itself and the remaining terms need not be disclosed and should remain privileged.
[11] The Settling Parties also take issue with the Non‑Setting Defendants’ claims to be prejudiced by the Pierringer Agreement because: (1) the Non‑Setting Defendants have been adverse in interest to the Settling Defendants from the commencement of the litigation; (2) the Non‑Setting Defendants have had a full opportunity to examine the Settling Defendants for discovery and have engaged in documentary disclosure with them; and (3) the Non‑Settling Defendant, Simrati Simrati, has been found guilty in her Highway Traffic Act trial of making a turn not in safety. Their position is that production of the Pierringer Agreement redacted for quantum is not necessary to resolve the Non-Settling Defendants’ concerns about any potential prejudice arising from the Pierringer Agreement.
LAW AND ANALYSIS
[12] The starting point for considering the scope of privilege with respect to a Pierringer agreement is the Supreme Court of Canada decision in Sable Offshore Energy Inc. v. Ameron International Corp.[^1] in which the court held that a Pierringer agreement is protected by settlement privilege. However, it is clear from Sable and other cases that have considered Pierringer agreements and other proportionate share settlement agreements used in resolving multi-party litigation that the applicable settlement privilege is not unqualified.
[13] The most obvious example of the limitation on settlement privilege with respect to a Pierringer agreement is that the settling parties are required to disclose to the court and the non‑settling parties that they have entered into a settlement by way of Pierringer agreement. This principle is no longer controversial and it is not contested by the Setting Parties. I will return to the qualified nature of the settlement privilege below.
[14] It is also not controversial that certain terms of a Pierringer agreement must be disclosed. This too is accepted by the Setting Parties. However, as noted above, the position of the Settling Parties is that disclosure is limited to the “essential terms” of a Pierringer agreement.
[15] It is these two key principles of Pierringer agreements – that they are at once privileged while at the same time being agreements that must be disclosed – that have led to various types of disputes about parties’ rights and obligations when a Pierringer agreement is entered into and the settling parties are seeking to implement them.
[16] None of the post-Sable cases referred to by the parties on this motion has considered the issue currently before the court, i.e. which terms in a Pierringer agreement (other than the financial terms) must be disclosed. Nevertheless, the cases outline a number of key principles with respect to Pierringer agreements and other types of proportionate share settlement agreements that can be grouped as follows:
a) The policy reasons for settlement privilege over Pierringer agreements;
b) The impact that settlement by way of Pierringer agreement has on non‑settling parties;
c) The need to balance the competing interests of the settling and non-settling parties; and
d) Grounds for limiting the scope of settlement privilege.
(a) Policy reasons for settlement privilege over Pierringer agreements
[17] The case law has long recognized the public interest in settlement and the role that settlement privilege plays in promoting settlement. In Sable, the Supreme Court summarized the public policy reasons and benefits of settlement privilege as follows:
Settlement negotiations have long been protected by the common law rule that “without prejudice” communications made in the course of such negotiations are inadmissible The settlement privilege created by the “without prejudice” rule was based on the understanding that parties will be more likely to settle if they have confidence from the outset that their negotiations will not be disclosed.[^2]
…[S]ettlement privilege covers any settlement negotiations… [and] …the protection is for settlement negotiations, whether or not a settlement is reached. That means that successful negotiations are entitled to no less protection than ones that yield no settlement.[^3]
[18] Sable recognized that Pierringer agreements attenuate the obstacles in the way of negotiating settlements in multi-party litigation and ended any debate as to whether a Pierringer agreement, the final result of a negotiated settlement, is privileged.
[19] In Allianz Global Risk US Insurance Co. v. Canada,[^4] Justice Macleod explained the utility of Pierringer agreements as follows:
There is no doubt that there is an overriding public interest in favour of settlement. It is sound judicial policy which contributes to the administration of justice. Pierringer agreements have been recognized as an important tool in settling multi‑party litigation. As described by the Supreme Court it is an important tool without which it is very difficult to conclude a settlement with only some of the defendants and with which it is possible to substantially streamline the litigation.[^5]
(b) Impact of Pierringer agreements on non‑settling parties
[20] While Pierringer agreements are an important tool in settling multi-party litigation and promoting settlement, it is recognized that they affect and are potentially prejudicial to non-settling defendants because they change the dynamics of an action.[^6] In Allianz, Justice Macleod described the impact of a Pierringer agreement on the non-settling defendants as follows:
The non-settling defendant faces procedural prejudice when it is the sole remaining defendant. Although its liability for damages will be limited to its proportionate share, it will now be faced with defending the allegation it is 100% at fault and in asserting its defence it may well be faced with proving the fault of the other former defendants even though they are non-parties.[^7]
(c) Balancing competing interests – promoting settlement and maintaining the integrity of the trial process
[21] As a result of the changes in the litigation landscape caused by Pierringer agreements that are imposed on the non-settling defendants, courts have recognized the need to maintain the integrity of the trial process and consider the interests of non-settling defendants. In Sable, the Supreme Court noted as follows:
Pierringer Agreements in Canada built on these American foundations and routinely included additional protections for non-settling defendants, such as requiring that non-settling defendants be given access to the settling defendants’ evidence. In this case, for example, the court order approving the settlement required that the plaintiffs get production of all relevant evidence from the settling defendants and make this evidence available to the non-settling defendants on discovery. It also ordered that, with respect to factual matters, there be no restrictions on the non-settling defendants’ access to experts retained by the settling defendants. In addition, the Agreements in this case specified that their non-financial terms would be disclosed to the court and non-settling defendants “to the extent required by the laws of the Province of Nova Scotia and the rulings and ethical guidelines promulgated by the Nova Scotia Barristers' Society” (A.R., at pp. 142 and 184).[^8]
[22] In Moore, Justice Perell referred to Pettey v. Avis Car Inc.,[^9] a case involving a settlement through a Mary Carter agreement in which the court held that it could direct procedural safeguards to counterbalance “the skewering of the adversarial orientation of the lawsuit”.[^10] The same can be true in the context of a settlement by way of a Pierringer agreement. For example, in Allianz, Justice Macleod made the following observation about the need to balance the competing interests of the settling and non-settling parties:
There is a public policy in favour of supporting settlements. Pierringer agreements should be approved and supported if possible because there are benefits to the parties involved in the litigation but also systemic benefits to the justice system as a whole. Of course the implementation of the agreement must also be fair to the non-settling defendant which is left to face the litigation alone…[^11]
[23] In Accel Electric, Master Short noted that the court needs to seek the “just balancing of the interests of various parties to an action” where a settlement is reached between some of the parties prior to trial.[^12] Similarly, in considering the necessary balancing of interests of settling and non‑settling parties, the Alberta Court of Appeal has noted as follows:
… Sable Offshore confirmed that Pierringer agreements must be disclosed, but not the actual amount of compensation to be paid. This struck the appropriate balance between encouraging partial settlements, while maintaining the integrity of the trial process. ...[^13]
(d) Settlement privilege is qualified
[24] As noted above, the settlement privilege applicable to a Pierringer agreement is qualified. The controversy relates to determining the manner in which the privilege will be limited and whether any procedural safeguards are necessary to protect the non-settling defendants and the integrity of the trial process.
[25] In Sable, all of the terms of the applicable Pierringer agreements were disclosed to the non‑settling parties except the agreed‑upon settlement amounts. The non‑settling defendants wanted to know what amounts the parties settled for, and the question before the court was whether those negotiated amounts needed to be disclosed, or whether they were protected by settlement privilege. In analyzing the limitations on settlement privilege, Justice Abella noted as follows:
Settlements allow parties to reach a mutually acceptable resolution to their dispute without prolonging the personal and public expense and time involved in litigation...[^14]
Settlement privilege promotes settlements. As the weight of the jurisprudence confirms, it is a class privilege. As with other class privileges, while there is a prima facie presumption of inadmissibility, exceptions will be found “when the justice of the case requires it” (Rush & Tompkins Ltd. v. Greater London Council, [1988] 3 All E.R. 737 (H.L.), at p. 740).[^15]
[26] In considering whether the settlement privilege should continue to apply to the settlement amount, Justice Abella held as follows:
Since the negotiated amount is a key component of the “content of successful negotiations”, reflecting the admissions, offers, and compromises made in the course of negotiations, it too is protected by the privilege...[^16]
There are, inevitably, exceptions to the privilege. To come within those exceptions, a defendant must show that, on balance, “a competing public interest outweighs the public interest in encouraging settlement”...[^17]
[27] In the context of the Sable action, Justice Abella concluded that there was no tangible prejudice created by withholding the settlement amounts that would outweigh the public interest in promoting settlement,[^18] and that it was not clear how knowledge of the settlement amounts materially affects the ability of the non-settling defendants to know and present their case.[^19]
[28] Having concluded that the settlement amount was covered by privilege, Justice Abella summarized the principled basis for analyzing whether there should be an exception to settlement privilege as follows:
A proper analysis of a claim for an exception to settlement privilege does not simply ask whether the non-settling defendants derive some tactical advantage from disclosure, but whether the reason for disclosure outweighs the policy in favour of promoting settlement. While protecting disclosure of settlement negotiations and their fruits has the demonstrable benefit of promoting settlement, there is little corresponding harm in denying disclosure of the settlement amounts in this case. [^20]
Commentary on what must be disclosed
[29] Neither Sable nor the post-Sable cases referred to by the parties on this motion considered which specific terms of a Pierringer agreement (other than the financial terms) are protected by settlement privilege and which must be disclosed. Nevertheless, there is some general commentary in the case law and literature with respect to the scope of disclosure.
[30] In Accel Electric, Master Short reviewed Sable and other cases that considered issues regarding Pierringer agreements and other proportionate share settlement agreements. He noted that prior to Sable there were two schools of thought as to whether an executed Pierringer agreement is privileged and whether the amount of the settlement must be disclosed to the non‑settling parties. He noted that:
The Supreme Court has since resolved both of those questions in Sable Offshore, supra at paras 18-25 and the answer now is that the agreement is covered by settlement privilege. The fact of the agreement and certain features of the agreement must be disclosed to the court and to the non-settling defendant but the amount of the settlement need not be at this stage.[^21]
Again, this begs the question as to what terms (what “certain features”) must be disclosed.
[31] In Allianz, Justice Macleod observed as follows: “In the case at bar, the settling parties have disclosed all of the terms of their agreement except for the amount. This is the correct approach.”[^22] There is also some commentary in the literature about the scope of disclosure. Having reviewed the case law in this area, Professor Adjin‑Tettey concluded as follows:
To minimize prejudice to non-settling defendants, the settling parties under both Mary Carter and Pierringer Agreements have an obligation to immediately disclose the existence and terms of the agreement to the court and the non-settling parties, save for the settlement amount that is not disclosed until after the trial and the assessment of the plaintiff's total damages.[^23]
Application of the Pierringer principles to the current dispute
[32] It is plain from the above analysis that the question before the court on this motion cannot be answered fully by noting that a Pierringer agreement is privileged. Such an approach would ignore questions about the proper scope of disclosure regarding the settlement and the protections for the Non-Settling Defendants that may be necessary as a result of the Pierringer Agreement. Similarly, statements in the case law with respect to the requirement to disclose a Pierringer agreement must be treated as nuanced rather than definitive statements. As noted above, such statements are references to the requirement that the fact of the settlement by way of Pierringer agreement must be disclosed, along with certain of its terms. Yet, the question remains as to which terms must be disclosed and which must remain protected by settlement privilege.
[33] The Plaintiffs and Settling Defendants acknowledge that settling parties are required to provide non-settling parties with a copy of a Mary Carter agreement but take the position that there is no obligation to produce a copy of a Pierringer agreement. While there are differences between the two types of proportionate share settlement agreements, I do not think those differences necessarily lead to different disclosure obligations.[^24]
[34] In the current circumstances, the Settling Parties argue that the Non‑Settling Defendants are only entitled to disclosure of the essential terms of the agreement, excluding the amount paid, and that they are not entitled to production of the Pierringer Agreement. The Settling Parties also assert that they have disclosed the essential terms through the draft amended statement of claim that they provided to the Non‑Settling Defendants. However, none of the cases relied on by the Settling Parties indicate that a party’s disclosure obligation is limited to the “essential terms” of a Pierringer agreement.
[35] While not conclusive on the question of the scope of required disclosure, it is useful to consider the approach taken in other cases. In Sable, all of the terms were disclosed to the non‑settling defendants except the settlement amounts. As referenced above, in Allianz, Justice Macleod noted that “…the settling parties have disclosed all of the terms of their agreement except for the amount. This is the correct approach”,[^25] and it appears that that the terms were also disclosed in Accel Electric. In Pettey, where a Mary Carter agreement was in place, the court required disclosure of the terms of the settlement agreement save for the financial terms.
[36] The Plaintiffs and Settling Defendants argue that the use of the phrase “correct approach” in Allianz reiterates that disclosure of the agreement itself is not compulsory. I do not read this aspect of Allianz so narrowly and see it as consistent with the commentary by Professor Adjin‑Tettey that the settling parties have an obligation to disclose the terms of a Pierringer agreement other than the financial terms.[^26]
[37] The settling parties also argue that in cases such as Allianz where all of the settlement terms other than the financial terms were disclosed, the settling and non-settling defendants began with a “common cause” against the plaintiff. They argue that unlike the situation in cases such as Allianz, the Pierringer Agreement in the current action does not really change the landscape of the litigation because the Setting Defendants and Non‑Setting Defendants were never truly aligned in interest. I find this to be an oversimplification of the impact that the Pierringer Agreement has on the parties to this litigation. As noted by Justice Perell in Moore: “The adversarial orientation of a lawsuit is complex because parties may be adverse about some issues and not others.”[^27] Even if the nature of the claims in this action were such that the Settling Defendants and Non‑Settling Defendants were not fully aligned from the outset, it is apparent from the pleadings that they were aligned on several issues, including the denial of the Plaintiffs’ damages claims and the assertion that the Plaintiff driver was contributory negligent. Further, as noted above, although the Non‑Settling Defendants’ liability for damages will be limited to their proportionate share, they are faced with defending the allegation that they are 100% at fault, and in defending the action they will be seeking to prove the fault of the Settling Defendants even though the Settling Defendants will become non-parties.[^28]
[38] The Settling Defendants also take the position that if the Plaintiffs sever liability and only pursue the Non-Settling Defendants to the extent of their several liability, then the terms of the Pierringer are not relevant to the Non‑Settling Defendants. I do not agree. As occurred in Allianz and Accel Electric, the settlement and the intended release of the Settling Defendants from the action and crossclaims in this action will impact the Non-Setting Defendants and the conduct of the litigation going‑forward. As a result of the change in the litigation landscape, the Non‑Settling Defendants and the court have an interest in knowing the terms of the Pierringer Agreement as it will be necessary to assess and balance the interests between the Setting Defendants and the Non‑Setting Defendants.
[39] In this regard, the Non-Settling Defendants have an interest in knowing whether the Pierringer Agreement contains any of the potentially relevant terms that can be found in such agreements. This includes terms that relate to, among other things: (1) preservation of, accessibility to and use of evidence at trial, including use of documentary production and discovery evidence; (2) witness availability; and (3) cooperation covenants between the settling and non‑settling parties. For example, in Sable, the Supreme Court noted that, as part of the terms of the applicable Pierringer agreements, (a) Sable agreed to amend its statement of claim against the non-settling defendants to pursue them only for their share of liability, and (b) all the relevant evidence in the possession of the settling defendants would be given to the Plaintiffs and be discoverable by the non-settling defendants. The impact of such terms on the conduct of the litigation is obvious. As Justice Perell noted in Moore:
… a reason for disclosure was that the court immediately needed to know the extent to which, if at all, the settlement agreement influenced the adversary system. For present purposes, Master MacLeod's comment [in Noonan v. Alpha-Vico, 2010 ONSC 2720 (S.C.J.-Master)] about the effect of a settlement agreement on the integrity of the adversary system is the important matter to note. In this regard, he stated, at paras. 51 and 52:
Other aspects of a partial settlement may also be relevant. For example it would be relevant if the former defendant has obligated itself to give access to all of its documents, to make witnesses available for interviewing or conversely if the plaintiff has restricted its ability to access such documents or information. It would be relevant if the former defendant has contractually bound itself not to co-operate with the other defendants or has agreed that it will extend such co-operation. One reason these kinds of agreements are relevant is because they may bring the documents or witnesses into the possession, power or control of the plaintiffs. This will be important for production and discovery planning. Similarly the former defendant may or may not have obliged itself to preserve documents and other evidence. All of this will be important for the non-settling defendants to know so that they may bring appropriate motions or factor this into the discovery plan. 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 also be relevant however when the settling defendant is no longer in the action but will nevertheless be providing key evidence at trial. 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.[^29]
[40] The Settling parties seek to minimize the importance of this type of information on the basis that discovery in the current action is complete and the action is already scheduled for pre‑trial and trial. However, as is apparent from the above quotation, there are many aspects of a partial settlement that remain relevant as the matter approaches trial, including issues with respect to preservation of evidence, obligations on the Settling Defendants to cooperate and provide witnesses/evidence at trial. To date, the disclosure by the settling parties has been essentially nothing more than disclosure that the Settling Parties have agreed to settle the Plaintiffs’ claims against the Settling Defendants and sever the liability of the Non-Settling Defendants and the Settling Defendants. The draft amended statement of claim has no information about evidence preservation, whether there is any cooperation agreement between the settling parties, availability of witnesses for trial and trial preparation, whether contact information for witnesses will be provided, or use of the affidavits of documents, documentary production and discovery transcripts relating to the Settling Defendants.[^30]
[41] The Plaintiffs and Settling Defendants raise the specter that ordering the disclosure of the non‑financial terms of the Pierringer Agreement will somehow jeopardize their settlement and that doing so is generally against public interest. While I leave open the possibility that, in certain circumstances, there may be terms in a Pierringer agreement, in addition to the financial terms, that need and merit protection, there is no evidentiary support for the bald assertion by the Settling Parties that disclosure would jeopardize their settlement. On this motion, I am unable to find that disclosure of non-financial terms of the Pierringer Agreement will impact the settlement or, more broadly, dissuade parties from entering into such settlements.
[42] As noted by Justice Macleod in Allianz,[^31] every settlement agreement must be considered in context. Here, the context is an altered litigation landscape that includes a pending motion by the Plaintiffs seeking an order amending the statement of claim to sever the Plaintifs’ claims, and an intended motion by the Settling Defendants seeking a dismissal of the crossclaims, which would force the Non‑Settling Defendants to abandon their claims against the Settling Defendants without their consent.
[43] It is apparent that the Pierringer Agreement has caused a change in the dynamics of the action. It impacts and is potentially prejudicial to the Non‑Settling Defendants. The need to protect the Non‑Settling Defendants from this impact is a reason for disclosure of the non-financial terms of the Pierringer Agreement. On the other side of the coin, despite their protestations, the Settling Parties have not put forward any supportable basis for finding that disclosure of the non‑financial terms will jeopardize the settlement or that maintaining privilege over such terms would have the demonstrable benefit of promoting settlement. To the contrary, as noted above, there are numerous examples where settling parties have disclosed all the terms of their Pierringer agreements other than the financial terms. The Settling Parties have not referred to any specific term or any type of term typically found in a Pierringer agreement that any court has ordered to be protected in the same way as the financial terms, or why such protection should apply in this case. Further, the Settling Parties have not articulated what type of additional terms should remain protected or any principled basis for protecting them in circumstances where the litigation landscape has been altered as it has in this case. In the current context, the disclosure to date by the Settling Parties is insufficient to ensure protection of the Non‑Setting Defendants from the potential prejudice that could arise from the Pierringer Agreement. The benefit of maintaining privilege over the non-financial terms of settlement is outweighed by the corresponding harm in denying disclosure of such terms.
[44] In the result, I find that it is in the interests of justice in this case to find that there is an exception to settlement privilege that requires disclosure of the Pierringer Agreement, redacted only for the settlement amounts and any dates of payment.
CONCLUSION
[45] The motion is granted. I hereby order as follows:
(1) The Settling Parties shall within eight days of release of these reasons provide to the lawyers for the Non‑Settling Parties a copy of the Pierringer Agreement in an envelope marked “confidential”. The Settling Parties may only redact the settlement amounts and any dates of payment.
(2) The Non‑Settling Parties and their lawyers may not provide a copy of the Pierringer Agreement nor disclose its contents to any non-party to this action except with consent of the Settling Parties or order of the court.
(3) The Pierringer Agreement and contents thereof shall not be used for purposes other than this action except with the consent of the Settling Parties or order of the court.
(4) The Pierringer Agreement shall be provided in a sealed envelope at the commencement of trial to the trial judge who shall be advised it is a Pierringer agreement between the Settling Parties. Review, use or disclosure of the Pierringer Agreement at trial shall be within the discretion of the trial judge.
(5) The Pierringer Agreement 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 Pierringer Agreement shall be left in the court file after completion of the pre-trial conference.
(6) If it is necessary to file the Pierringer Agreement or to refer to its contents 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.
[46] If the parties cannot agree on costs of this motion, they may make written submissions, limited to three pages, exclusive of attachments, as follows:
(1) by the Non‑Settling Defendants, by January 10, 2022; and
(2) by the Settling Parties, within 14 days of receipt of the Non‑Settling Defendants’ submissions.
R. Frank Associate J.
DATE: December 15, 2021
[^1]: 2013 SCC 37 (“Sable”) [^2]: Sable, at para. 13 [^3]: Sable, at paras. 16 and 17, citing Brown v. Cape Breton (Regional Municipality), 2011 NSCA 32, 302 N.S.R. (2d) 84 in which it was noted at para. 41 that “Typically parties no more wish to disclose to the world the terms of their agreement than their negotiations in achieving it.” [^4]: [2017] 0.J. No. 3829 (ONSC) (“Allianz”) [^5]: Allianz, at para. 9 [footnotes omitted]; see also Accel Electrical Contractors Ltd. v. Brampton, [2017] 0.J. No. 5956 (“Accel Electric”), at paras. 35-36 [^6]: See, for example, Moore et al. v. Bertuzzi et al., 2012 ONSC 3248, 110 O.R. (3d) 611 (ONSC) (“Moore”), at paras. 72-79 and 89, and Accel Electric, at paras. 27 and 50 [^7]: Allianz, at para. 26 [^8]: Sable, at para. 24 [emphasis added] [^9]: (1993), 1993 CanLII 8669 (ON SC), 13 O.R. (3d) 725, [1993] O.J. No. 1454 (Gen. Div.) (“Pettey”) [^10]: Moore, at para. 69. While Moore and Pettey pre-date Sable, the principles extracted from those cases remain sound and relevant to the consideration of the privilege question in issue on this motion. Moore was an appeal of a decision by Master Dash in which he described the settlement agreement in issue as a "proportional sharing agreement" and concluded that the settlement agreement was akin to a Mary Carter agreement, which he held had to be promptly disclosed to the court. Master Dash ordered that the defendants’ settlement agreement be produced. The appeal of Master Dash’s decision was dismissed. [^11]: Allianz, at para. 11 [emphasis added] [^12]: Accel Electric, at para. 2 [^13]: Canadian Natural Resources Ltd. v. Wood Group Mustang (Canada) Inc., [2018] A.J. No. 1123 (ABCA) (“CNRL”), at para. 141 [^14]: Sable, at para. 11 [^15]: Sable, at paras. 12 [emphasis added] [^16]: Sable, at para. 18 [^17]: Sable, at para. 19 [^18]: Sable, at para. 20 [^19]: Sable, at para. 27; In Pettey, Justice Ferrier reached the same conclusion with respect to the Mary Carter agreement in issue in that case. [^20]: Sable, at para. 30 [emphasis added] [^21]: Accel Electric, at para. 65 [emphasis added] [^22]: Allianz, at para. 31 [emphasis added] [^23]: “Pierringer Settlement Agreements - Proceeding with Eyes Wide Open”, (2021) 99 Can Bar Rev 28-64 (“Eyes Wide Open”), at para. 11 [emphasis added] [^24]: See, for example, Eyes Wide Open, at para. 11 [^25]: Allianz, at para. 31 [emphasis added] [^26]: Eyes Wide Open, at para. 11 [^27]: Moore, at para. 76 [^28]: Allianz, at para 26 [^29]: Moore, at para. 89 [emphasis added] [^30]: See, for example, Allianz, at para. 37 in which Justice Macleod imposed certain terms in connection with a motion to implement a Pierringer agreement [^31]: Allianz, at para. 23; see also Accel Electric, at para. 60