In Burwash v. Levy, 2021 ONSC 7196, the court ordered production of settlement documentation from two previous actions.
In the action in issue, the plaintiff sued several medical assessors and two medical assessment centres, alleging that they interfered with expert opinions in an accident benefits claim, which were relied on by the tort insurer in the tort action.
The damages sought by the plaintiff included recovery of the financing costs associated with a litigation loan. In the previous tort action and accident benefits action, the plaintiff also sought recovery in regards to the litigation loan.
The defendants argued that the settlement documents in the tort and accident benefits claims were necessary to prevent double recovery.
The plaintiff relied on settlement privilege and also argued that the issue of double recovery only arises once the plaintiff has established liability against the defendants and has proven damages at trial.
Justice Ryan Bell held that disclosure of the settlement documents would serve to promote settlement and would not detract from the public interest in encouraging settlement.