Balsom v Rideout, 2022 NLCA 20
By: Weston McArthur (Student-at-Law)
Reading Time: 4 Minutes
On September 1, 2017, Mr. Corey Rideout (the Plaintiff) and Ms. Gail Balsom (the Defendant)
were involved in a motor vehicle accident. On September 19, 2019, the Plaintiff filed his claim.
The Defendant took the position that the action was statute-barred pursuant to Newfoundland
and Labrador’s Limitations Act and filed a motion to dismiss the Plaintiff’s claim on this basis.
The Act sets out that a potential plaintiff generally must commence an action within two years of
the date that the accident occurred; however, “[t]he limitation period may be extended where the
conduct of the defendant results in a confirmation of the cause of action” per Section 16 of the
Act [para 8].
During the period between September 2017 and September 2019, both sides engaged in some
degree of discussions surrounding a potential settlement. The Plaintiff submitted that this showed
that the Defendant’s insurer had acknowledged his cause of action, and that any settlement
privilege that existed over the correspondence between both parties should be waived. The trial
judge agreed with the Plaintiff’s reasoning and dismissed the Defendant’s application; however,
on appeal, this ruling was overturned.
The Canadian judicial system has limited resources, and Canadian courts are very interested in
seeing litigants settle before they go to trial. If correspondence relating to settlement negotiations
were to be admissible in court, settlement attempts may be discouraged, making settlement
privilege the standard. Exceptions to settlement privilege are very rarely allowed, and only when
“a competing public interest outweighs the public interest in encouraging settlement”, as detailed
in Section 19 of the Act.
To establish whether settlement privilege exists, three requirements must be met: firstly, there
must be litigation/serious contemplation of litigation; secondly, communication between the
parties must be in an effort to negotiate a settlement; and thirdly, communication must be with
the intent that, if settlement is not reached, the correspondence would not be entered into court
record (for example, marking it “without prejudice”).
The appeal judge found that the correspondence between the Plaintiff lawyer and the Defendant’s
insurer fell under settlement privilege without exception. The fact that the Plaintiff would be
statute-barred from pursing his claim was not sufficient reason to waive settlement privilege.
id=8801&mode=stream
