Andersen Consulting v. Canada
T-1096-95
Hugessen J.A.
11/8/99
5 pp.
Parties entering agreement providing for early neutral evaluation, mediation by retired judge of Superior Court of Ontario-Art. 5.1 providing any information provided, materials prepared for neutral evaluation confidential, privileged-Pursuant to agreement plaintiff delivering to defendant draft expert reports-Defendant revealing actual text of those reports to own experts for purposes of latter preparing reports for use in litigation-Clear, egregious breach of terms of early neutral evaluation agreement-Documents exchanged to be confidential, privileged-Plaintiff later serving upon defendant final reports of same experts only slightly different from draft reports-Defendant's experts simply having longer period of time to prepare response to plaintiff's positions-Order draft reports treated as reply reports, so that defendant foreclosed from any right to file further reply reports in response to plaintiff's expert reports, and permitting plaintiff to file reply reports of own in response to defendant's expert reports considered appropriate-Since defendant's breach egregious, although not in bad faith, costs on solicitor/client scale appropriate-Order for costs in amount of $20,000 payable forthwith and in any event of cause.