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ARTICLE · 11 AUGUST 2022

The Road To Settlement Is Paved With Admissible Communications

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In a decision released earlier this year, the Ontario Court of Appeal affirmed that "without prejudice" communications are admissible to prove the existence of a settlement, ...

CanadaLitigation, Mediation & Arbitration
Max Skrow
Max Skrow
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In a decision released earlier this year, the Ontario Court of Appeal affirmed that "without prejudice" communications are admissible to prove the existence of a settlement, even where those communications pertain to offers to settle which were not accepted and do not form the settlement at issue.

In Idea Notion Development Inc. v CTO Boost Inc., 2022 ONCA 14, the appellant, CTO Boost Inc. ("CTO") hired the respondent, Idea Notion Development Inc. ("Idea Notion") to provide software development services. Idea Notion completed its work and submitted invoices in respect of same, and CTO sought to pay them via cheques, many of which were returned for "Non-Sufficient Funds". The parties then entered into negotiations with respect to the payment of Idea Notion's invoices, during which CTO made two offers to settle which Idea Notion rejected. CTO then made a third offer to settle, which Idea Notion accepted. In the process of papering the settlement, CTO purported to

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