View source for Settlement Privilege

{{LevelZero}}{{HeaderPrivilege}}
==General Principles==
Settlement privilege (or negotiation privilege) is a ''class'' privilege designed to promote settlement.<ref>
{{CanLIIRPC|Sable Offshore Energy Inc v Ameron International Corp|fzcgw|2013 SCC 37 (CanLII)|[2013] 2 SCR 623}}{{perSCC|Abella J}}{{atL|fzcgw|12}}<br>
{{CanLIIRP|Delchev|gj6m1|2015 ONCA 381 (CanLII)|325 CCC (3d) 447}}{{perONCA|Tulloch JA}}{{atL|gj6m1|24}}<br>
</ref>
It creates a ''prima facie'' presumption of inadmissibility.<ref>
{{ibid1|Sable}}{{atL|fzcgw|12}}<br>
{{ibid1|Delchev}}{{atL|gj6m1|24}}<br>
</ref> 
Any information disclosed under settlement privilege cannot subsequently be used against the accused.<ref>
{{CanLIIRP|Zarinchang|29bdl|2010 ONCA 286 (CanLII)|[2010] OJ No 1548}}{{TheCourtONCA}}{{atL|29bdl|28}}<Br>
{{CanLIIR-N|Bernardo|, [1994] OJ No 1718 (ONSC)}}{{at-|16}}<Br>
</ref>
Exceptions include where the information is used "to rebut an allegation of prejudice at the hands of the Crown."<ref>
{{supra1|Zarinchang}}{{atL|29bdl|28}}<Br>
{{supra1|Bernardo}}<Br>
</ref>

; Purpose
The privilege is intended to "promote settlement" by wrapping a "protective veil" around their efforts to settle by ensuring the communications are inadmissible.<ref>
{{supra1|Sable Offshore Energy}}{{atL|fzcgw|2}} ("The purpose of settlement privilege is to promote settlement.  The privilege wraps a protective veil around the efforts parties make to settle their disputes by ensuring that communications made in the course of these negotiations are inadmissible.")
</ref>
The parties need the ability to have "full and frank discourse" in order for agreements to take place. Without protection, these discussions may not otherwise take place.<ref>
{{CanLIIRP|Pabani|231td|1994 CanLII 8723 (ON CA)|89 CCC (3d) 437}}{{perONCA|Finlayson JA}}
</ref>

The privilege protects the public interest in favouring settlement. It "promotes the interests of litigants generally by saving them the expense of trial".<ref>
{{CanLIIRPC|Kelvin Energy Ltd. v Lee|1fs8p|1992 CanLII 38 (SCC)|[1992] 3 SCR 235}}{{perSCC|L'Heureux‑Dubé J}}{{atL|1fs8p|48}}<br>
{{supra1|Sable Offshore Energy}}{{atL|fzcgw|11}}
</ref> 

The disclosure of "without prejudice" communications has a tendency to promote litigation.<ref> 
{{CanLIIRC-N|Pirie v Wyld| (1886), 11 OR 422, [1886] OJ No 188 (Ont. H.C.)}}{{perONSC|Cameron CJ}}{{at-|18}} (“... letters written or communications made without prejudice, or offers made for the sake of buying peace, or to effect a compromise, are inadmissible in evidence. It seemingly being considered against public policy as having a tendency to promote litigation, and to prevent amicable settlements.”)
</ref>

; Application
The privilege applies where the following criteria are established:<ref>
{{CanLIIRPC|Calgary (City) v Costello|1p6lz|1997 ABCA 281 (CanLII)|160 WAC 1}}{{perABCA|Picard JA}}{{atL|1p6lz|60}}<br>
{{supra1|Delchev}}{{atL|gj6m1|24}}<br>
John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis Canada Inc, 2009) at para 14.322<br>
</ref>
# A litigious dispute must be in existence or within contemplation.
# The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed.
# The purpose of the communication must be to attempt to effect a settlement.

Where settlement fails the privilege is invoked and the communications cannot be used in the course of litigation.<ref>
{{CanLIIRPC|Hansraj v Ao|4zlp|2002 ABQB 385 (CanLII)|314 AR 262}}{{perABQB|Slatter J}}{{atL|4zlp|13}}<br>
{{supra1|Sable}} at para 17 ("the protection is for settlement negotiations, whether or not a settlement is reached.  That means that successful negotiations are entitled to no less protection than ones that yield no settlement")
</ref> 
However, if a settlement is successful, the communications may be used to prove the existence of a settlement contract.<ref>
{{ibid1|Hansraj v Ao}}{{atL|4zlp|13}}</ref>

Courthouse hallway discussions concerning offers to settle and related discussions are ''prima facie'' privileged".<ref>
{{ibid1|Delchev}}
</ref>

Discussions of possible admissions by defence counsel are protected by privilege.<ref>
{{CanLIIR-N|Lake|, [1997] OJ No 5447 (Ont. Gen. Div)}}{{ats-|41 to 52}}<Br>
</ref>

; Waiver
The privilege is possessed by both parties to the litigation and cannot be unilaterally waived by one party.<ref>
{{ibid1|Hansraj v Ao}}{{atL|4zlp|13}}<Br>
{{CanLIIRP|Delchev|fsg7j|2012 ONSC 2094 (CanLII)|[2012] OJ No 3963}}{{perONSC|Low J}}{{atL|fsg7j|19}}<Br>
</ref>

; Without Prejudice Terms
The "without prejudice" common law rule renders communications "made in the course of ... negotiations" in admissible.<Ref>
{{supra1|Sable}}{{atL|fzcgw|13}}
</ref>
This rule has been extended beyond simply documents and communications.<ref>
{{supra1|Sable}}{{atL|fzcgw|14}}
</ref>

The use of the term "without prejudice" alone is not determinative of whether settlement privilege applies.<ref>
{{CanLIIRPC|TDL Group Ltd. v Zabco Holdings Inc et al|1wcht|2008 MBQB 86 (CanLII)|7 WWR 659}}{{perMBQB|Joyal J}}{{atL|1wcht|30}}<br>
{{CanLIIRPC|Flegel Construction Ltd. v Cambac Financial Projects Ltd|27rg8|1983 CanLII 1019 (AB QB)|3 WWR 405}}{{perABQB-H|Veit J}}<br>
{{supra1|Sable}}{{atL|fzcgw|14}}
</ref>

; Use in Abuse of Process Motions
Settlement privilege applies to resolution discussions and is prima facie inadmissible on an abuse of process motion.<ref>
{{supra1|Delchev}}{{atL|fsg7j|27}}</ref>

;Exception
There is a broad exception to settlement privilege in cases where "justice ... requires it".<ref>
{{supra1|Sable Offshore Energy}}{{atL|fzcgw|12}}
</ref>
The issue in excluding the privilege is whether there is "a competing public interest outweighs the public interest in encouraging settlement".<ref>
{{supra1|Sable}}{{AtL|fzcgw|19}}
</ref>

{{reflist|2}}

==Exceptions==
Possible exceptions to settlement privilege include:<ref>
{{CanLIIRC|Meyers v Dunphy|1qlq8|2007 NLCA 1 (CanLII)}}{{perNLCA|Wells CJ}}<br>
</ref>
#Whether without prejudice communications have resulted in a concluded compromise agreement;
#To show that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence;
#Where a clear statement made by one party to negotiations, and on which the other party is intended to act and does in fact act, may be admissible as giving rise to an estoppel;
#If the exclusion of the evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety, but such an exception should only be applied in the clearest cases of abuse of a privileged occasion; 
# In order to explain delay or apparent acquiescence in responding to an application to strike out a proceeding for want of prosecution but use of the letters is to be limited to the fact that such letters have been written and the dates at which they were written;
# Whether the claimant had acted reasonably to mitigate his loss in his conduct and conclusion of negotiations for the compromise of proceedings brought by him; and
# Where an offer is expressly made “without prejudice except as to costs”.

{{reflist|2}}

==Plea Negotiations==
Communications regarding plea negotiations fall under the category of "public interest privilege" and so cannot be used in court. This includes negotiations regarding bail hearing<ref>
{{CanLIIRP|Bernard|1m30l|2002 ABQB 747 (CanLII)|[2002] AJ No 1007 (Alta. Q.B.)}}{{perABQB-H|Veit J}}<br> 
</ref> as well as sentencing hearings.<ref>
{{CanLIIRP|Roberts|5m3w|2001 ABQB 520 (CanLII)|[2001] AJ No 772 (Alta. Q.B.)}}{{perABQB|Martin J}}</ref>

This privilege exists to permit "frank and full discussions between counsel for the accused and counsel for the Crown." <ref> 
{{CanLIIR-N|Bernardo|, [1994] OJ No 1718, (Ont. Gen. Div.)}}{{at-|16}}<br>
{{CanLIIRP|Delorme|hvjq5|2005 NWTSC 34 (CanLII)|[2005] NWTJ No 51 (N.W.T. S.C.)}}{{perNWTSC|Vertes J}}{{atL|hvjq5|18}}<br>
{{supra1|Roberts}}{{atL|5m3w|60}}<br>
{{CanLIIRP|Griffin|274zn|2009 ABQB 696 (CanLII)|[2009] AJ No 1455 (Alta. Q.B.)}}{{perABQB|Greckol J}}{{atL|274zn|65}}<br>
</ref>

This kind of privilege cannot be waived by one party alone.<ref>
{{supra1|Bernard}}{{atL|1m30l|39}} <br> 
{{supra1|Griffin}}{{atL|274zn|54}}<br>
</ref>

It is prudent to set "terms of engagement in advance of negotiations" so the documents and reports provided to the other side pursuant to settlement negotiations will not be used for any other purpose.<ref>
{{supra1|Griffin}} – Doctors letter disclosed to crown was used in a production order. The report was found to be privileged, invalidating the ITO</ref>

{{reflist|2}}