Ontario Civil


Civil Procedure

DISCOVERY
Master recognized balance between settlement privilege and need to ensure fairness

Appeal by plaintiffs from master’s order requiring immediate disclosure of Mary Carter Agreement (“MCA”), partially redacted, to non-settling defendant. Plaintiff was passenger seriously injured in single vehicle accident and sued driver, Durham region, insurer and Ontario. Claim against Ontario was dismissed and plaintiff and driver entered MCA, which partially settled action as against driver and insurer, leaving only Durham as defendant, and provided cross-claim by driver against Durham continued. Partial judgment was rendered on this basis, specifying settlement amounts and terms and conditions regarding structuring of settlement. Plaintiffs served all defendants with partial judgment and Durham moved for disclosure of MCA. Master found MCA was exception to settlement privilege, partial judgment did not adequately disclose adversarial orientation or change of litigation landscape resulting from settlement, there was no specific evidence supporting plaintiffs’ position they would not have entered MCA had they known disclosure ramifications and there was no merit to argument master lacked jurisdiction. Plaintiffs argued master erred in law, order would have chilling effect on settlement efforts, and Durham’s motion was attempt to set aside partial settlement, so master lacked jurisdiction. Appeal dismissed. MCA significantly altered relationship among parties to litigation. Master properly recognized balance between settlement privilege and need to ensure fairness, integrity and justice of the court process. Master did not misapprehend facts or law and properly analyzed effects of settlement and partial judgment in changing adversarial orientation. Having read MCA, master ordered further disclosure to permit Durham to fairly understand changed adversarial alliances and litigation landscape. Decision was consistent with case law and Durham’s motion for disclosure was not collateral attack on partial judgment, which did not deal with disclosure of underlying agreements or portions thereof.

Stamatopoulos v. Harris (Jul. 18, 2013, Ont. S.C.J., Carole J. Brown J., File No. 05-CV-283449 PD1) 231 A.C.W.S. (3d) 347.

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