Trevor Todd and Jackson Todd have over sixty years combined experience in handling estates disputes
Repp v Butler 2026 BCSC 107 reviewed the law relating to the admissibility into evidence of letters marked without prejudice.
The court found that the letter issue issue in Repp did not include any attempt to offer any settlement and thus was admissible.
The General Rule about Without Prejudice Letters
The Supreme Court of Canada in Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 is authority for the proposition that settlement negotiations are protected by the common law rule that “without prejudice” communications made in the course of such negotiations are inadmissible: at para. 13. That privilege covers any settlement negotiations, whether successful or not: at paras. 15–16.
However in of Acciona Wastewater Solutions LP v. Greater Vancouver Sewerage and Drainage District, 2025 BCSC 2040, et out a succinct summary of the applicable legal principles:
[85] Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a litigious dispute. Sometimes called the “without prejudice rule”, it enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation: Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 at para. 31.
[86] Settlement privilege is a “class” or “blanket” privilege. It protects the class of communications exchanged in the course of settlement negotiations, as well as documents created for the purpose of that endeavour: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 paras. 12, 16.
[87] The use of the words “without prejudice” is not essential. What matters is the intent of the parties to settle the dispute: Sable Offshore Energy at para. 14.
[88] Justice Veenstra confirmed the test for settlement privilege in Stancor Enterprises Ltd. v. Fiorvento, 2022 BCSC 1842 at para. 92, citing Abdul-Ahad v. Challa, 2021 BCSC 795 at para. 35:
- a)A litigious dispute must be in existence or within contemplation;
- b)The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and
- c)The purpose of the communication must be to attempt to effect a settlement.
[89] The party asserting settlement privilege must establish that a “litigious dispute” was either in existence or within contemplation, and the communications in question were made for the purpose of attempting to effect a settlement of that dispute. This means that litigation must be more than a mere possibility for the privilege to apply: Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143 [Blue Line Hockey] at para. 103.
[90] Litigation can be said to be within contemplation when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it: Hamalainen v. Sippola (1991), 1991 CanLII 440 (BC CA), 62 B.C.L.R. (2d) 254 (C.A.).
The onus was on Ms. Repp, as the party asserting settlement privilege, to establish that a “litigious dispute” was either in existence or within contemplation and the court found that neither was present.
The law is clear that the use of the phrase “without prejudice” is not, in and of itself, sufficient to protect a document from disclosure; rather, the content of the document must contain a settlement offer or refer to settlement indirectly by either inviting compromise or some other approach to resolution: Abdul-Ahad v. Challa, 2021 BCSC 795 at para. 38; see also Fluor Enterprises Inc. v. Leder Investments Ltd., 2025 ABKB 234 at para. 48. As noted by Justice Fitzpatrick in Reum Holdings Ltd. v. 0893178 B.C. Ltd., 2015 BCSC 2022:
The use or non-use of the words “without prejudice” in any settlement negotiation is not necessarily determinative of whether privilege is invoked. What is important, is whether the negotiations took place with the intent of the parties towards a settlement of the action: [Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37] at para. 14; see also Belanger v.Gilbert (1984), 1984 CanLII 355 (BCCA), 58 B.C.L.R. 191 (C.A.)…
