Lawyers for Todd Bertuzzi turned a miscue into an advantage when they managed to reinstate his third-party lawsuit against his former coach, Marc Crawford.
The lawsuit was dismissed in March when Bertuzzi's lawyers missed a deadline to file paperwork with the Ontario Superior Court that would have set the case for trial.
Ontario Superior Court case management master Ronald Dash granted a motion Tuesday morning from Robert Ben, one of Bertuzzi's lawyers, to reinstate the lawsuit. He also granted Bertuzzi's lawyers' request, over the objection of Crawford's lawyer, to conduct an examination of discovery on Crawford. But Dash limited the examination to four hours and ruled it must be conducted within the next 30 days.
That concession, according to one lawyer at Tuesday's hearing, will give Bertuzzi's lawyers the advantage of conducting an intensely focused examination of Crawford even if it is short by lawyers' standards. They will be able draw on Crawford's responses to a lengthy written examination by Tim Danson, the lawyer for former NHL player Steve Moore, who is suing Bertuzzi for $38-million in damages as the result of an attack on March 8, 2004.
Tuesday's hearing also saw Danson take the unusual step of siding with Bertuzzi. He told Dash that he was in favour of allowing the examination of Crawford because when both cases come to trial "there is the appearance of fairness for all parties."
Dash agreed but placed limits on the examination. He also assessed Bertuzzi $700 in costs for Tuesday's hearing.
While the damages in question are expensive, even for millionaire hockey players, there is little chance Bertuzzi or Crawford will have to pay with their own money. Since their actions occurred as employees of the Canucks, the Canucks' insurance company will be on the hook if the court rules against them.
Bertuzzi, who now plays for the Detroit Red Wings, filed suit against Crawford last year as a result of Moore's lawsuit, which is seeking damages for lost income. Both Bertuzzi and Crawford were employed by the Vancouver Canucks when the player attacked Moore in retaliation for a hit Moore made on teammate Markus Naslund in a previous game. Bertuzzi sucker-punched Moore several times and drove his head into the ice, leaving him with a serious concussion and other serious injuries. Moore has not played hockey since the attack.
Bertuzzi's lawyers argue in the third-party lawsuit against Crawford, who now coaches the Dallas Stars, that the former Canucks coach should pay any damages awarded Moore because he encouraged the attack. Crawford denied this, saying Bertuzzi carried out the attack on his own.
Dash ordered the examination of Crawford to be done quickly because the third-party lawsuit has to be tried with Moore's lawsuit. Both actions are expected to go to trial early next year.
Ben told the court that Geoff Adair, the lawyer handling Bertuzzi's defence in Moore's lawsuit was "focused on the main action" and his failure to file the paperwork on time last fall in the third-party lawsuit was "inadvertent."
Jessica Kimmel, Crawford's lawyer, did not object to reinstating the lawsuit because there was practically no chance the court would let the dismissal stand. But she did object to Bertuzzi's lawyers asking for the right to examine Crawford after saying several times during conferences and hearings going back to 2006 that they probably would not need to examine Crawford. She also said the request for examination was not mentioned in the motion to reinstate the lawsuit and the lawyers were told in February, 2009, that they needed to make a decision on examining Crawford.
"It is fair enough to say you forgot [to file the paperwork]but you haven't said anything about discovery," Kimmel said. "It is not appropriate to come to court now and say not only will you fix this, they want to backdoor [the right to examine Crawford]
"They were told in February of 2009 they needed to make up their minds. They are not being deprived [of the right to defend their client] They had plenty of time to make up their minds."
Ben told the court the lawyers thought they might not need to examine Crawford because he had submitted to an extensive examination by Danson. They also hoped a settlement between Moore and Bertuzzi would make questioning Crawford unnecessary. But that did not occur.