January 30 , 2023

Dodging Settlement Privilege

January 4 , 2023

Lurking Dangers and Errors

January 3 , 2023

Your Real Goals

December 5 , 2022

Contracts for Higher Costs

November 24 , 2022

Scope of Offers to Settle

October 13 , 2022

Checklist for Cross-Examination

September 16 , 2022

Reviewing Latest Changes

August 22 , 2022

First Steps in Problem Solving

July 28 , 2022

Checklist of Powerful Procedural Principles

March 22 , 2022

Repeating a Cross-Examination Question

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021


December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules

April 16, 2018

Limping Lawsuits are Often

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

February 13 , 2018

Court Backlog

December 18 , 2017

Lowering the Status of Courts

September 15 , 2017

Access to Court Decisions

July 4 , 2017

Strictissimi Juris

June 14 , 2017

Why Don't Your Clients Settle?

June 5 , 2017

Gap in Rules About Parties

June 5, 2017

Personal Costs Against

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?


Côté’s Commentaries

© J.E. Côté 2016-2023


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:

  1. 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.
  2. The tests for what creates settlement privilege do not depend upon any weighing of competing interests or policy, which exercise is forbidden.
  3. Settlement privilege lasts indefinitely, and does not end when the dispute or circumstances creating it for these records ends.
  4. 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.
  5. It takes both parties to the negotiation to waive the privilege; waiver by one is ineffective.
  6. Settlement privilege applies whether or not the people or the interests are private or public.
  7. 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 recent decision is McDiarmaid Est. v. Alberta Infrastructure 2023 ABKB 14 (Jan 9).

– Hon. J.E. Côté

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.

He may be contacted through Juriliber at email: or phone 780-424-5345.