When "Without Prejudice" Actually Protects a Letter — and When It Does Not
Lawyers and paralegals stamp "without prejudice" on demand letters every day, and most people assume the words are magic: write them at the top and the lette...
Frequently Asked Questions
Does writing "without prejudice" on a letter automatically protect it?
No. The label is evidence of an intention to negotiate confidentially, but it is neither necessary nor sufficient. Protection depends on a three-part test: a litigious dispute must exist or be contemplated, the communication must be intended to be confidential if talks fail, and its purpose must be a genuine attempt to settle. A bare demand or threat does not become privileged just because the words appear at the top.
Can a letter that was never marked "without prejudice" still be protected?
Yes. Settlement privilege attaches to the substance of the communication, not the label. If the letter genuinely forms part of an attempt to settle an existing or contemplated dispute, it is presumptively protected even without the words — the Supreme Court confirmed this in Sable Offshore Energy v. Ameron (2013).
What is the test for settlement privilege in Ontario?
Three elements: (1) a litigious dispute in existence or within contemplation; (2) an express or implied intention that the communication not be disclosed to the court if negotiations fail; and (3) a purpose of attempting to effect a settlement. The party claiming privilege must establish the elements; the party seeking disclosure must then show a recognized exception outweighs the public interest in settlement.
When can a without prejudice letter be shown to the court?
The main exceptions: to prove that a settlement was reached and its terms (Union Carbide v. Bombardier, 2014); where the negotiations involved fraud, misrepresentation, or undue influence; where the letter contains threats or other clearly improper statements; and on the question of costs after judgment, for offers made "without prejudice save as to costs" or under Rule 49.
Can I attach the landlord's settlement letter to my LTB application?
You should not. Settlement privilege applies at tribunals like the LTB, and attaching the other side's without prejudice correspondence to your evidence can get the material excluded and hurt your credibility. If the letter contains threats or you believe an exception applies, get advice before using it.
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