Detroit Red Wing Todd Bertuzzi, Sept. 22, 2011.
Lawyers for Todd Bertuzzi and the Vancouver Canucks were ordered to turn over details of an agreement with former Canucks head coach Marc Crawford to the lawyers for former NHL player Steve Moore.
As a result of the agreement, Bertuzzi – who played for the Canucks from 1998 to 2006 and is now with the Detroit Red Wings – dropped his third-party claim against Crawford and the dismissal of all cross claims between the parties as related to Moore's $38-million lawsuit against Bertuzzi for an attack in March of 2004, that ended Moore's NHL career and left him with serious injuries.
The lawsuit is scheduled for trial in late September or early October.
In his decision, Master Ronald Dash of the Ontario Superior Court of Justice also revealed the agreement calls for Bertuzzi, the Canucks and Crawford to share the responsibility for paying any damages awarded to Moore.
Dash would not reveal how the three parties plan to split the payment. He also ordered Moore's lawyers not to make public any part of the agreement.
Bertuzzi's lawyer, Geoffrey Adair, said the sides will appeal Dash's decision.
In the original court hearing, Adair's son and associate, John Adair, joined the Canucks' lawyer, Alan D'Silva, in arguing settlement agreements between defendants must remain confidential or those involved in court actions would not be inclined to settle before a trial. The appeal will also be made on that argument, Adair said.
Dash made it clear in his written decision he is unhappy with the lawyers for the Canucks (D'Silva and Ellen Snow) and the Adairs for not making the agreement known to the court after it was made last July.
He is particularly upset it was not acknowledged as anything other than speculation in a court hearing on Jan. 4, when the Canucks and Bertuzzi asked Dash to allow them to conduct separate neuropsychological examinations of Moore.
If he had known the three defendants were no longer adversaries "I may well have come to a different decision on allowing" separate medical examinations, Dash wrote.
Dash warned the lawyers they could still face consequences for their failure to inform the court or Moore's lawyer, Tim Danson, about the agreement. In quoting another judge's decision in a similar case, Dash wrote the lawyers' actions were "an abuse of process and must result in consequences of the most serious nature for the defaulting party."
But any action by the court appears to depend on a request by Danson for sanctions against the defendants' lawyers. Danson declined to comment on the matter.
"We believed we were taking the right course," Geoffrey Adair said of the decision not to disclose the agreement.
In ordering the agreement between Bertuzzi, Moore and the Canucks to be turned over to Moore's lawyers, Dash agreed with Danson's arguments that it could change how he conducts his trial strategy. He said knowing just how the defendants have agreed to split the payment of any court awards will help Danson decide how to pursue liability against all of the defendants and how to cross-examine them more effectively.
"The jury may assess Bertuzzi's credibility differently if they knew he had a financial incentive to dismiss his third-party claim against Crawford as well as his cross claim against [the Canucks]" Dash wrote in his decision.