Date: 19990922
Docket: A-515-99
CORAM: ROTHSTEIN J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
(Defendant)
- and -
ANDERSEN CONSULTING
Respondent
(Plaintiff)
HEARD at Ottawa, on Wednesday, September 22, 1999
JUDGMENT delivered from the Bench on Wednesday, September 22, 1999
REASONS FOR JUDGMENT BY THE COURT
Date: 19990922
Docket: A-515-99
CORAM: ROTHSTEIN J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
(Defendant)
- and -
ANDERSEN CONSULTING
Respondent
(Plaintiff)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on Wednesday, September 22, 1999)
BY THE COURT
[1] Because he found that the defendant had egregiously breached the confidentiality terms of a "neutral evaluation agreement" in an unsuccessful pretrial alternative dispute resolution process, the learned Motions Judge ordered that expert reports served by the defendant on the plaintiff on August 5, 1999 were to be treated as reply reports so that the defendant would be foreclosed from the right to file further reply reports. We agree with the analysis of the learned Motions Judge as to the interpretation of the confidentiality provisions of the "neutral evaluation agreement" and his conclusion that the defendant was in serious breach of those provisions. However, the defendant did not serve an expert report on damages on August 5, 1999, and it is not apparent to us from the Motions Judge's reasons, that it was made clear to him that the result of his order would be that the defendant would be severely handicapped in its ability to defend the action on the issue of damages.
[2] In this action, the plaintiff claims in excess of $19 million plus interest in the amount of $10 million. We believe it would not serve the interests of justice to deprive the defendant of the right to address the plaintiff's expert reports on damages with its own expert report on this issue. Accordingly, we will allow the appeal and order that the defendant may forthwith file her reply expert report on damages, which we have been told has already been served on the plaintiff. The plaintiff shall have the right to serve and file a reply expert damages report on or before Monday, November 1, 1999. In all other respects, the appeal is dismissed.
[3] In allowing the appeal, this Court does not wish to be taken as minimizing or condoning the defendant's breach of the confidentiality provisions of the neutral evaluation agreement. We agree with the learned Motions Judge that the alternative dispute resolution process must not be undermined by the egregious type of action exhibited by the defendant in this case. Although the defendant is successful on the appeal, it is the defendant's actions that have been the cause of the motion before the Motions Judge and this appeal. In these unusual circumstances, and in order that litigants be reminded of the importance of protecting the integrity of alternative dispute resolution and that their conduct must always be scrupulous in that process, the Court will award the costs of this appeal on a solicitor and client basis to the plaintiff in the sum of $10,000 inclusive of disbursements and payable forthwith.
"Marshall Rothstein"
J.A.
"Marc Noël"
"J. Edgar Sexton"
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