Party defending against claim based on prior settlement does not waive settlement privilege

30 Oct

On September 30th, the Divisional Court held that a party defending against claim based on prior settlement does not waive settlement privilege. The Court reasoned as follows:

Consistent with such notions of fairness, we are satisfied that the LCBO has not waived settlement privilege in this case. The LCBO claims that Magnotta’s current actions advance the same claims as the prior settled proceedings, and we express no view on that assertion. However, the LCBO should, as a matter of fairness, be able to raise the settlement in its defence and in support of its proposed motion, without automatically losing the benefit of settlement privilege. In particular, the LCBO should be able to rely on the Minutes of Settlement for this purpose.

The defendant obtained a sealing order based on the public interest in encouraging parties to settle their disputes.

Magnotta Winery Corp v Ontario (Alcohol and Gaming Commission), 2015 ONSC 6234 (CanLII).

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