A recent King’s Bench decision first cites some basic correct law and properly finds that the negotiation privilege claimed exists. But then the decision orders the records disclosed anyway, by finding some kinds of exception to the privilege. The supposed exceptions are as follows:
(a) The privilege only exists where the document is being sought to establish evidence of liability or a weak cause of action;
(b) The privilege does not exist where the settlement records have relevance apart from establishing one party’s liability for the conduct which is the subject of the negotiations;
(c) The privilege exists to learn an amount only if it is relevant to learn or determine the appropriate compensation in the case, and not if it is merely from a similar or related case;
(d) The privilege only exists where the rule for Crown (public-interest immunity) of delicate negotiation or emergency producing a public danger, is met;
(e) The privilege does not exist if there would be limited prejudice from producing the records;
(f) The government had once stated that eventually the records in this group would be made public.
But the authority tendered here for any such exceptions (or narrowing of the privilege) is very thin. For some of these, no authority is cited. And the decision contradicts a great deal of binding authority to the contrary, some of it even cited earlier in this judgment.
The law of privilege has developed a great deal in the last 40 or 50 years, and Ontario and various academic writers have often lagged far behind the Alberta courts and the Supreme Court of Canada in that process. The only authorities here cited for the supposed exceptions or narrowing are a 48-year-old edition of a textbook published in Ontario, one Ontario Superior Court decision from 2009, and a 32-year-old Queen’s Bench decision on a completely different topic (in a case having nothing to do with settlement privilege).
The undoubted contrary rules of law and principles, decided by many judgments binding in Alberta, are as follows:
Settlement privilege (like those for legal advice or litigation preparation) is a “class” privilege, which must be applied without weighing the policy or advantages or disadvantages in the individual case, whether by Wigmore’s 4 tests or otherwise.
The tests for what creates settlement privilege do not depend upon any weighing of competing interests or policy, which exercise is forbidden.
Settlement privilege lasts indefinitely, and does not end when the dispute or circumstances creating it for these records ends.
Settlement privilege is important, broad, and is not to be narrowed down, and covers all parts of the discussions, and bars any use in court, substantive or procedural.
It takes both parties to the negotiation to waive the privilege; waiver by one is ineffective.
Settlement privilege applies whether or not the people or the interests are private or public.
The exceptions to settlement privilege are few, to be narrowly construed, and are established ones, such as a communication which is itself an unlawful or fraudulent act, or preventing double recovery. The word “public” there is used in the sense of general policy or honesty, not in the sense of what the Crown or a government body owns or needs, nor in the sense of who the parties are, government or private. This being a true privilege, the courts cannot override it, even by considering the broader aspects of public policy or any policy of openness.
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.