06/05/2012 02:26 EDT | Updated 08/05/2012 05:12 EDT

Bertuzzi loses appeal in Moore case to keep side agreement details private

Lawyers for Todd Bertuzzi and Orca Bay, the company that owns the Vancouver Canucks, have lost an appeal to keep secret the details of an agreement that shares costs between them should they lose a $38 million lawsuit brought against them by Steve Moore.

Moore's lawyer, Tim Danson, learned of the agreement earlier this year and won a decision to have it released to him, but not for public disclosure.

Justice Paul Perell, of the Ontario Superior Court of Justice, upheld that decision, writing "since the structure of the settlement agreement has already been disclosed, the non-disclosure of the details of the proportional sharing is more harmful than the complete disclosure".

The nature of the agreement came to light when Bertuzzi quietly dropped his third-party lawsuit against former Vancouver Canucks coach Mark Crawford. Bertuzzi claimed Crawford's negligence as coach contributed to his infamous sucker punch on Steve Moore in 2004.

In arguing to keep the settlement agreement secret, Bertuzzi's lawyer, Geoff Adair, submitted "one of the overriding concerns the defendants have with the current Order for disclosure is that plaintiff's counsel will now be in a position to make full use of the Settlement Agreement to advance the theme to the trier of fact [the jury] at every turn that the defendants have acted in concert to 'hide' the facts by 'paying off' Bertuzzi to drop the claim against Crawford."

Citing precedent, Danson argued "The Court of Appeal has held that these types of agreements change 'the landscape of the litigation and must be immediately disclosed. The distinctions advocated by the defendants in this appeal are antithetical to the very public policy principle the court seeks to maintain."

In his 25-page ruling released Monday, Justice Perell concludes that because Bertuzzi dropped his third-party lawsuit against Crawford and against Orca Bay and that Orca Bay dropped it's crossclaim against Bertuzzi, the three entities were no longer adversaries.

"The court needs to understand the precise nature of the adversarial orientation of the litigation in order to maintain the integrity of its process," wrote Justice Perell.

Danson would not comment beyond his written submission when reached at his Toronto office. "Clearly, the defendants plan was to reveal the dismissal of the cross-claims at the last possible moment to maximize the prejudice to the plaintiffs and go through the entire trial without the plaintiffs, the trial judge and the jury ever knowing about the significant financial incentive offered to Bertuzzi in order to have a united front against the plaintiffs, " he wrote.

Bertuzzi and Orca Bay could continue to appeal this ruling in Divisional Court.

Geoff Adair, Bertuzzi's lawyer, could not be reached for comment.