What Makes a Document “Without Prejudice”? The Legal Test for Settlement Privilege in Ontario
Settlement privilege is one of the most misunderstood rules of evidence in Ontario. This post explains the Supreme Court of Canada’s definitive rulings...
Frequently Asked Questions
Do I need to include a dollar amount for settlement privilege to apply?
No. There is no legal requirement that a settlement communication contain a specific monetary offer. What matters is whether the communication was made for the purpose of attempting to settle a dispute, not whether a dollar figure appears in it.
Do I need to write "without prejudice" on the document?
It is not legally required, but it is strongly recommended. The label is indicative of the purpose of the communication and removes ambiguity. A communication made for settlement purposes is privileged whether or not it carries the label — but the label makes it much harder to argue otherwise.
Can one party waive settlement privilege without the other’s consent?
No. Settlement privilege belongs to both parties. Neither side can unilaterally waive it. Both must consent before privileged settlement communications can be put before a court.
Does settlement privilege still apply if no settlement is reached?
Yes. The Supreme Court of Canada held in Sable (2013 SCC 37) at paragraph 17 that settlement privilege protects negotiations "whether or not a settlement is reached."
Are verbal settlement discussions privileged?
Yes. Settlement privilege covers all communications made for the purpose of settlement, including verbal discussions, phone calls, in-person meetings, and emails. The medium does not matter — the purpose does.
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