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Without Prejudice Settlement Communications

9/14/2018

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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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  • Home
  • URGENT - COVID19 Announcement
  • Chambers Arbitrations
  • About Us
    • Areas of Law >
      • Family Law >
        • Family Law - General
        • Collaborative Family Law
        • Children's Law
      • Adult Guardianship and Trusteeship
      • Civil Litigation
      • Corporate and Commercial Law
      • Estate Administration
      • Estate Litigation
      • Mediation and Arbitration
      • Real Estate
      • Wills, Enduring Power of Attorney and Personal Directives
    • Other Services >
      • Boardroom Rental
      • Notary Public
      • Limited Retainer
      • Divorce Coaching
    • Our Lawyers >
      • Sharon Crooks
      • Kelly Stewart
      • Allison Ross
      • Christopher Dick
      • Jenna C. Layton (Walsh)
      • Harry W. Sawchuk
      • Nikki Kowalski
  • Testimonials
  • Contact Us
  • Resources
    • Blog
  • FAQ
  • Careers