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Production of Confidential Settlement Documents - the Continuing Saga of Todd Bertuzzi and Steve Moore
Posted in Civil Procedure

As a lifelong Canucks fan, I will never forget the video footage of Todd Bertuzzi tackling Steve Moore and the subsequent North American wide television coverage.  This incident was back in the news recently because Master Dash of the Ontario Superior Court of Justice ordered production of the Minutes of Settlement among Todd Bertuzzi, Marc Crawford (the former coach of the Vancouver Canucks) and Orca Bay, the company that owns the Vancouver Canucks, arising from their claims against each other relating to the Steve Moore incident.

During a NHL game on March 8, 2004, Todd Bertuzzi, then of the Vancouver Canucks, struck Steve Moore, then of the Colorado Avalanche, from behind.  It is alleged in Moore et al v. Bertuzzi et al that the force of the blow caused Moore a significant injury and ended his NHL career.  The lawsuit was commenced on February 14, 2006 against Bertuzzi, and Orca Bay.  Bertuzzi subsequently issued a Third Party Claim against Marc Crawford.  Orca Bay filed a cross claim against Bertuzzi.

In July of 2011, Orca Bay, Bertuzzi and Crawford settled the claims amongst themselves.  The Plaintiff sought production of the Minutes of Settlement.  The Defendants resisted on the basis of settlement privilege.  Master Dash ordered the Minutes of Settlement be produced.

He found that the settlement had changed the landscape of the litigation because it has altered the relationship among the parties as set out in the pleadings.  The main ground for this finding was that the settlement apportioned liability among Orca Bay, Bertuzzi and Crawford in a way that could influence their testimony at trial.  Master Dash was particularly troubled that the trial judge could be left with the impression that Orca Bay, Bertuzzi and Crawford were adverse to each other when in fact they were not.  Master Dash found that the interests of fairness and justice overrode the public policy interest of fostering settlements by keeping them confidential. 

In the end, Master Dash limited the applicability of his decision to settlement agreements that “change the landscape of the litigation” and affect both pre-trial and trial procedures as being worthy of disclosure.  He also issued further reasons in which he stated the conduct of counsel was above reproach and he did not intend to suggest that any of them mislead the court.

Where does this leave Defendants who wish to settle among themselves and fight only with the Plaintiff?  “At risk” is the answer.  Given the case by case analysis utilized, in part, by Master Dash, Defendants will need to show in each case that the settlement does not fundamentally alter the case in order to ensure their settlement agreement will be protected from disclosure.

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