Court File and Parties

Court File No.: CV-15-0665-00 and CV-15-1892-00 Date: 2022 04 12 Superior Court of Justice - Ontario

Re: PHYSICIANS' DIALYSIS CENTER INC. – and – THE CREDIT VALLEY HOSPITAL AND TRILLIUM HEALTH CENTER and DAVID PERKINS And Between: DAVID PERKINS – and - PHYSICIANS' DIALYSIS CENTER INC., GEORGE WU, ARTURO WADGYMAR, GORDON K. T. WONG and DONALD KIM And: PHILIP BOLL – and - PHYSICIANS' DIALYSIS CENTER INC. TRILLIUM HEALTH PARTNERS, GEORGE WU, ARTURO WADGYMAR, GORDON K.T. WONG and DONALD KIM

Before: Daley J.

Counsel: Michael McWilliams, for the parties Dr. Perkins and Dr. Boll Douglas Christie, for the parties PDC, Dr. Wu., and Dr. Wong Mark Ross, for the parties Dr. Wadgymar, and Dr. Kim

Heard: April 1, 2022, via video conference

Endorsement Re: Pierringer Agreement

Introduction

[1] The parties, Dr. David Perkins and Dr. Philip Boll (“Perkins & Boll”) concluded a partial settlement of their claims in these actions with the parties Dr. Arturo Wadgymar and Dr. Donald Kim pursuant to a Partial Settlement Agreement.

[2] The parties Physicians’ Dialysis Centre Inc. (“PDC”), Dr. George Wu and Dr. Gordon K. T. Wong (the “Non-Settling Parties”) are not parties to the Partial Settlement Agreement and counsel for Perkins & Boll seeks approval by the court of the Partial Settlement Agreement, which is in the nature of a Pierringer agreement, approving same and confirming that:

(a) the partial settlement agreement does not change the adversarial position of the parties; and that (b) the partial settlement agreement does not impair the ability of Perkins & Boll to pursue their claims against the Non-Settling Parties.

[3] The Non-Settling Parties, by their counsel, advised the court on the return of this motion that they neither consent to nor oppose the motion seeking the court’s review of the Partial Settlement Agreement or of the court’s approval of same as set out above.

[4] The action as against the parties, The Credit Valley Hospital and Trillium Health Centre was previously dismissed on the consent of all parties and as a result of an interpleader motion, these parties paid into court a sum of money which remains standing as a credit to this action.

[5] On February 10, 2015, PDC commenced an action against the Credit Valley Hospital, Trillium Health Center, and Dr. Perkins (“Perkins Action”).

[6] On March 17, 2015, Dr. Perkins delivered his statement of defence, counterclaim, and cross-claim.

[7] On April 21, 2015, Dr. Boll commenced a related action against PDC, Trillium Health Partners, Dr. Wu, Dr. Wadgymar, Dr. Wong and Dr. Kim (“Boll Action”).

[8] None of the Non-Settling Parties cross-claimed in the Perkins Action or Boll Action.

[9] These proceedings concern funds paid by the Credit Valley Hospital and Trillium Health Partners, purportedly pursuant to an understanding and a memorandum of understanding between the parties. Funds paid pursuant to this arrangement were received by only some of the parties in these proceedings.

[10] Although Dr. Wu, Dr. Wong, Dr. Wadgymar and Dr. Kim received varying portions of these funds, Dr. Perkins and Dr. Boll never received a share of the monies paid out.

[11] Prior to the Partial Settlement Agreement all parties exchanged affidavits of documents and productions and completed examinations for discovery.

[12] Over several months, as the case management judge, I convened case management and trial management conferences, including on October 1, November 5, 2021, and February 22, 2022, where, among other things, the parties engaged in settlement discussions.

[13] As indicated in the evidence submitted on this motion, on March 1, 2022, counsel for Perkins & Boll provided a copy of the signed Partial Settlement Agreement, between Dr. Perkins, Dr. Boll, and Dr. Wadgymar and Dr. Kim, to counsel for the Non-Settling Parties and advised counsel that the settlement agreement was contingent upon the court granting the orders sought on the within motion.

Legal Framework & Analysis

[14] There is an overriding public interest in favour of the settlement of litigation as it is in the interests of the administration of justice: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, at para 11.

[15] Furthermore, partial settlement agreements have been recognized as an important mechanism in settling multiparty litigation and they have been approved and supported by the court whenever possible, not only because there are benefits to the parties involved in the litigation but as well, they provide some respite for the overburdened justice system as a whole: Alianz v. Canada (A-G), 2017 ONSC 4484, at paras 9 and 11.

[16] It has been held that partial settlement agreements should be supported by the court where the fairness of the settlement is unchallenged and prejudice arising from the full implementation of the settlement has not been alleged or shown. Cases involving partial settlement agreements should not be rendered unsettleable unless there is just and substantial of cause for doing so: Rains v. Molea, 2012 ONSC 4906, at para 18.

[17] Court approval of partial settlement agreements is not necessary; however, the parties may seek a formal review and an order approving the partial settlement on the basis that the settlement achieved is fair and does not prejudice the Non-Settling Parties: Chu de Québec-Université Laval v. Tree of Knowledge International Corp., 2021 ONSC 5946, at paras 98 and 107.

[18] The Non-Settling Parties do not oppose this motion and Dr. Perkins and Dr. Boll will pursue their claims against the Non-Settling Parties on their several share of liability and joint liability to one another. None of the Non-Settling Parties cross-claimed in the Perkins Action or the Boll Action.

[19] In accordance with the Court of Appeal’s direction, Dr. Perkins, Dr. Boll, Dr. Wadgymar have complied with their obligations to immediately inform the Non-Settling Parties of their settlement and to disclose to them the Partial Settlement Agreement.

[20] Having been the assigned case management judge and further having engaged in several case management, trial management and pretrial discussions with counsel, and further having considered the material filed on this motion, I have concluded that the Partial Settlement Agreement does not give rise to any unfairness or prejudice to the Non-settling Parties and that it is in the interests of justice that the agreement be supported and approved by this court.

[21] In the result, an order shall issue in the following terms:

(1) that the Partial Settlement Agreement between Dr. Perkins, Dr. Boll, Dr. Wadgymar and Dr. Kim does not change the adversarial position of the parties; (2) that the Partial Settlement Agreement between Dr. Perkins, Dr. Boll, Dr. Wadgymar and Dr. Kim does not impair the ability of Dr. Perkins and Dr. Boll to pursue their claims against PDC, Dr. Wu and Dr. Wong.

[22] A draft order in these terms, as submitted by counsel, has been signed by me and shall issue accordingly.

Daley, J. Released: April 12, 2022