PRESS RELEASE: March 6, 1997
Crown's Motion to cancel the five settlement agreements in the course of this trial dismissed

Justice Haley, of the Ontario Court of Justice (General Division), dismissed the Crown's Motion to cancel the five settlement agreements between the Crown and the Plaintiffs in the trial.

After reviewing the settlement agreements, correspondence and conduct of the parties and their respective views of the settlement agreement, including such words in the settlement agreements as "agreed numbers" and "accept and agree to be bound", the court found that on the balance of probabilities a reasonable person acting objectively would find the specific numbers and assumptions as agreed on by the parties be used for all purposes in the trial. The court found no mutual mistake in common law that would permit cancellation of the settlement agreements.

The court found that the settlement agreements were entered into by counsel and representatives of the clients in clear language. Both the Plaintiffs and the Defendant acted on the settlements in not calling evidence. "The Plaintiffs having closed their case would suffer real prejudice if their case were reopened" and they had to recall witnesses. The court's policy is to encourage settlements whenever possible as a matter of public policy. To allow the Crown to rescind the settlement agreements would likely have resulted in another year's trial. The court has already been through one year of trial. Every effort should be taken to shorten a trial, not to lengthen it. The court found that it was "not unfair or unconscionable for the Defendant to be bound by these agreements".

After delivering her judgment, the court continued with the direct examination of Dr. Quirin regarding the Crown's position as to the appropriate discount rate. Dr. Quirin was one of two Crown experts to file expert reports suggesting that the consortium would lose money. He suggested that the rate of return that the consortium should receive should be almost twice that negotiated with Transport Canada in the transaction. Dr. Quirin's testimony had been delayed a week because of the Motion.


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