QUEEN’S BENCH FOR SASKATCHEWAN Date: 2012 10 30 Citation: 2012 SKQB 443 Docket: Div. No. 88 of 2012 Judicial Centre: Saskatoon, Family Law Division BETWEEN: KIRSTEN ANN TUCKER-LESTER and KEVIN JAMES LESTER Counsel: Marilyn Penner for the petitioner Kate Crisp for the respondent FIAT DUFOUR J. October 30, 2012 1) will get right to the point: with only very rare exception, communications designed to settle legal disputes cannot be disclosed to the Court unless both parties agree. Settlement negotiations are protected by settlement privilege which is a jointly held privilege that cannot be waived by any one party acting alone. This privilege is fundamental to the policy interest of promoting settlement discussions as means to avoiding trial. It should only be set aside if there is very compelling, competing policy warranting such. As settlement communications are almost always irrelevant to the issues that are properly considered by the Court, it is rare that there will be any competing policy or, indeed, any reason to reference them at all. 2) The application at bar is another salvo in a bitter custody and access dispute. ruled on the substantive aspect of the application in separate fiat and now render my decision in respect of the admissibility of some of the evidence the respondent put before the Court. He exhibited a letter to his affidavit that was from his counsel to the petitioner’s counsel. The letter was marked “Without Prejudice” and began with: ... My client has instructed me to forward the following without prejudice proposal in order to attempt settlement of the parties parenting and child support matters. 3) Just as promised, the letter goes on to set out a detailed, comprehensive offer of settlement. Although the law is clear that settlement proposals should seldom be made known to the Court, it happens too often and for no good reason. It is my hope that this reminder, not to be viewed as gentle, will change that. 4) do not intend to engage in lengthy discussion of settlement privilege because the law is quite clear and am bringing nothing new to the table: no extension of the law; no epiphany or novel approach just brief refresher for those who seem to have forgotten. More comprehensive analyses can be found in: Middelkamp et al. v. Fraser Valley Real Estate Board et al.(1992), 1992 CanLII 4039 (BC CA), 71 B.C.L.R. (2d) 276, [1992] B.C.J. No. 1947 (QL) (C.A.); White v. Woolworth Co. (1996), 1996 CanLII 11076 (NL CA), 139 Nfld. P.E.I.R. 324, [1996] N.J. No. 113 (QL) (Nfld. C.A.); Meyers v. Dunphy, 2007 NLCA (CanLII), 262 Nfld. P.E.I.R. 173; Squires v. Corner Brook Pulp and Paper Ltd. (1999), 1999 CanLII 18967 (NL SC), 175 Nfld. P.E.I.R. 202, [1999] N.J. No. 146 (QL) (Nfld. C.A.); Hansraj v. Ao, 2002 ABQB 385 (CanLII), 314 A.R. 262; Costello v. Calgary (City), 1997 ABCA 281 (CanLII), 152 D.L.R. (4th) 453; Leonardis v. Leonardis, 2003 ABQB 577 (CanLII), 43 R.F.L. (5th) 144; William Allan Real Estate Co. v. Robichaud (1987), 37 B.L.R. 286, [1987] O.J. No. 2167 (QL) (Ont. H.C.); Dos Santos (Committee of v. Sun Life Assurance Co. of Canada, 2005 BCCA (CanLII), 40 B.C.L.R. (4th) 245; Milton Farms Ltd. v. Dow Chemical Canada Inc. (1987), 1987 CanLII 4690 (SK QB), 63 Sask. R. 144, [1987] S.J. No. 197 (QL) (Q.B.). Settlement privilege 5) The petitioner objected to the admissibility of the respondent’s settlement proposal on the basis of settlement privilege. The respondent countered with: This is the respondent’s without prejudice proposal. He has chosen to waive any privilege over this proposal. 6) The respondent is wrong. party is entitled to waive some types of privilege, such as solicitor‑client privilege or litigation privilege, because they are his own to waive. Not so with settlement privilege. It is a jointly held privilege. A party cannot unilaterally waive privilege even on the proposal he made because it is not his to waive. That this must be so becomes clear on review of the reasons for the privilege. 7) First, the basics. The conditions that must be present for the privilege to be recognized are (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): (1) litigious dispute must be in existence or within contemplation. (2) 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. (3) The purpose of the communication must be to attempt to effect settlement. 8) Those are the formal conditions. More illuminating, suggest, is the policy reason for the privilege which, in turn, defines the scope of the privilege. Here is thumbnail sketch: (i) At the heart of settlement privilege is the overriding public interest in favour of settling legal disputes: “...[t]his policy promotes the interests of litigants generally by saving them the expense of trial...” (Kelvin Energy Ltd. v. Lee 1992 CanLII 38 (SCC), [1992] S.C.R. 235 at para. 48.) More than 100 years ago Cameron C.J. of the Ontario Court of Appeal wrote in Pirie v. Wyld (1886), 11 O.R. 422, [1886] O.J. No. 188 (QL) (Ont. H.C.), at para. 18: “... letters written or communications made without prejudice, or offers made for the sake of buying peace, or to effect compromise, are inadmissible in evidence. It seemingly being considered against public policy as having tendency to promote litigation, and to prevent amicable settlements.” (ii) It is common sense that settlement is less likely if the parties do not engage in full and frank discussions; (iii) Few parties would initiate or participate in settlement negotiations at all if such could later be used to their detriment: “What sensible man would attempt settlement if it could be used against him at trial?” (William Allan Real Estate Co. v. Robichaud, supra). (iv) To provide the degree of comfort required to encourage parties to engage in frank discussions without fear of prejudice, the whole of the settlement process is protected: all communications in furtherance of settlement regardless of from which party the communication emanates from the first utterance or letter to the last. (v) In order to promote settlement, the privilege must be broadly construed such that the integrity of the settlement process is preserved: (a) settlement privilege can only be waived with the consent of both parties (Squires v. Corner Brook Pulp, supra; Leonardis, supra). (b) the communication need not contain settlement offer any communication designed or intended to explore settlement, or from which the Court might infer there are settlement communications contemplated or in the works, is protected (White v. Woolworth Co., supra). (c) the privilege is clearly an important one, and in cases of doubt as to whether the correspondence does relate to the negotiations, the Court should undoubtedly err on the side of protecting the privilege (Hansraj v. Ao, supra). 9) Against that backdrop, return to the settlement proposal the respondent exhibited to his affidavit. can divine no reason that the respondent would put it before the Court other than to attempt to leave the inference that: “my proposal is reasonable so must be good, reasonable parent; by failing to accept that reasonable proposal, she must be unreasonable and, therefore, not as good parent.” This is gamesmanship and nothing more. Gamesmanship fouls that which the policy seeks to promote. Relevance of settlement proposals 10) Settlement privilege aside, and with the exception of few issues such as costs and limitation periods or when party seeks to establish that there was concluded agreement, am hard pressed to come up with situation where the existence of settlement proposal would be relevant to an issue before the Court. The comprehensive custody and access proposal the respondent exhibited to his affidavit here does nothing to advance his cause. Slatter J. was faced with an almost identical situation in Leonardis and observed at para 10: [10] Even if the privilege was somehow to be removed from this letter, it is not relevant. It does not outline any facts. It is argumentative, and merely puts forward the position of one party. At best it is an editorialized prayer for the relief that one of the parties thinks the Court should grant.... 11) Further in respect of relevance or the lack thereof, consider that settlement negotiations are conducted on the normal contractual basis of offer and acceptance: “if contract is reached, the negotiations are superseded by the contract itself, and become irrelevant and inadmissible, and if no contract is reached, then the negotiations are, for that reason, irrelevant.” (see: The Law of Evidence in Canada, supra, at para. 14,316; Newbery Energy Ltd. v. Amok Ltd. (1987), 1987 CanLII 4935 (SK QB), 62 Sask. R. 1, [1987] S.J. No. 685 (QL) (Q.B.). 12) Only rarely should the Court be advised of settlement negotiations and such will be even more rare in chambers applications. Yes, the matter of costs is at issue in interim applications but arguments for enhanced costs will seldom override the policy of promoting settlement. Costs can be pursued with vigour after trial if either of the parties is of such mind. 13) The petitioner shall have costs of $500 in respect of the notice of objection, payable within 15 days. J. G. D. Dufour
The parties were involved in a dispute regarding the custody of their children. The respondent husband sought to adduce as evidence an offer of settlement made by him to the petitioner. The respondent argued that he had waived any privilege regarding the proposal. HELD: The Court held that settlement proposals were privileged and that both parties jointly held it; the respondent could not unilaterally waive it. The Court denounced the respondent for exhibiting it to his affidavit as an attempt to infer that he was the better parent because the offer was so reasonable that only an unreasonable person would not accept it. The Court should only rarely be advised of settlement negotiations and even more rarely in chambers applications.