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Without Prejudice” settlement communications can be relied to enforce settlement as set out in leading Alberta Court of Appeal case, Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10: Exceptions to Settlement Privilege [29] As with most forms of privilege, there are exceptions to the rule. Some are universally accepted, while others are more controversial. Among the generally recognized exceptions are the following: (a) to prevent double recovery: Dos Santos (Committee of) v Sun Life Assurance Co of Canada, 2005 BCCA 4 (CanLII), 207 BCAC 54; (b) where the communications are unlawful, containing for example, threats or fraud; (c) to prove that a settlement (an accord and satisfaction) was reached, or to determine the exact terms of the settlement: Comrie v Comrie,2001 SKCA 33 (CanLII), 203 Sask R 164; (d) it is possible that the settlement posture of the parties can be relevant to costs. That is clearly the case with offers made under the Rules of Court, but also with respect to informal offers: Mahe v Boulianne, 2010 ABCA 74 (CanLII) at paras 8 ‑ 10, 21 Alta LR (5th) 277; Calderbank v Calderbank, [1975] 3 All ER 333 (CA). Jenna Walsh Jenna is an Associate with Rowanoak Law Office LLP.
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"In the recent Supreme Court of Canada case Sobeys West Inc. v. Alberta College of Pharmacists the propriety of Sobeys, awarding Air Miles rewards on purchases of pharmaceutical products was challenged by the Alberta College of Pharmacists, a professional governing body which regulates conduct of pharmacists and pharmacies. The Alberta Court of Queen's Bench had allowed an application by Sobeys, which also owns and operates Safeway, to apply the reward program to the purchase of pharmacy products. The College successfully appealed to the Alberta Court of Appeal to on the basis that amendments to the Code of Ethics and Standards of Practice for Pharmacists that prohibited inducements which were conditional on a patient obtaining a drug or professional service from a pharmacy. That Court of Appeal decision overturned the lower Court of Queen's Bench decision upon judicial review which held that the College's amendments were ultra vires the College and therefore it could not deny rewards to a purchaser of pharmaceutical products under Sobeys' loyalty program. The Court of Appeal determined that the judge hearing the review had erred in using the wrong standard in finding the amendments to be ultra vires and therefore used the standard of "reasonableness" to substitute its own findings and prohibit Sobeys applying Air Miles to purchases of pharmaceutical drugs and services. Sobeys application to appeal to the Supreme Court of Canada was dismissed." (Thanks to the Supreme Advocacy and Eugene Meehan, Q.C.) Jim MacSween Jim is a Partner with Rowanoak Law Office LLP Tis better to have loved and lost than never to have loved at all. – Alfred, Lord Tennyson While Tennyson may not have pictured his words being applicable to the problems and costs that can arise in divorce proceedings, these problems and costs may cause some to think that it would have been better to never have loved at all. Fortunately, a prenuptial agreement may be able to help with some of the costs and problems that can otherwise arise after marriage. A prenuptial agreement is essentially a contract between two people who plan to marry. This agreement will generally contain terms that will help determine property and debt during marriage or in the case of separation or divorce. There can also be other terms depending on each particular circumstances. If there is no enforceable agreement and the parties cannot amicably resolve matters, the Court will be required to resolve matters for the parties. This can become more expensive than an initial outlay for an agreement, or even the cost of changing the agreement as matters change over time. There are also postnuptial agreements for people who have already been married as well as cohabitation agreements for non-married couples. There are certain requirements required for prenuptial agreements, as well as other agreements, including matters such as each party have independent legal advice, and it is best to talk to a family law lawyer about specific requirements, your circumstances, and whether it is best for you to have a prenuptial or other agreement. By doing so, and if problems arise, you may be in a position of having loved and lost, but those losses including future losses that can arise from a contested matter, may be able to be mitigated. Chris Dick Chris is an Associate with Rowanoak Law Office LLP. |
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