Spencer Wong

The applicant insurer sought judicial review of an interlocutory decision by a Small Claims Court deputy judge regarding document production and costs.

The underlying action involved a rental car company suing the insurer after coverage was denied for a rental car accident due to the insured's failure to cooperate.

The Divisional Court dismissed the application, finding no exceptional circumstances, excess of jurisdiction, or denial of natural justice that would warrant intervention in a Small Claims Court interlocutory order.

The matter was directed to proceed to trial where the trial judge would determine the admissibility of the subpoenaed documents.

The respondent insurer raised preliminary issues seeking to bar the applicant's claim for statutory accident benefits due to her failure to attend an Examination Under Oath (EUO) and multiple insurer's examinations (IEs).

The Tribunal found it lacked the legislative authority to bar an application for non-attendance at an EUO.

Regarding the IEs, the Tribunal found that only the notice for the physiatry IE was compliant with the Schedule.

The Tribunal declined to dismiss the application but ordered a 120-day stay to allow the respondent to conduct the reasonably necessary physiatry IE.

The applicant's request for costs was denied.

The applicant sought statutory accident benefits after fracturing her ankle when she stepped onto a gravel strip while attempting to open the door of her newly purchased van at a dealership.

The respondent denied the claim on the basis that the incident did not meet the definition of an 'accident' under s. 3(1) of the Statutory Accident Benefits Schedule.

The Tribunal found that while the purpose test was met, the causation test was not.

The Tribunal concluded that the unmarked gravel construction area was an intervening cause and the dominant feature of the incident, not the use or operation of the vehicle.

The application for accident benefits was dismissed.

The respondent insurer brought a motion to stay the applicant's LAT application pending her attendance at an occupational therapy catastrophic impairment insurer's examination (OT CAT IE).

The applicant argued she was not required to attend because the insurer's notices denying catastrophic impairment and requesting the IE did not comply with the medical reasons and timeline requirements of section 45(3)(b) of the Schedule.

The Tribunal found that while the insurer's notices were indeed defective and non-compliant, the requested OT CAT IE was still reasonable and necessary to complete a deferred neuropsychological assessment.

The Tribunal granted a four-month stay of the application to allow the insurer to issue a compliant notice and for the applicant to attend the examination.

The party seeking costs was completely successful on motions regarding whether communications at a meeting were subject to settlement privilege.

The opposing party, who had surreptitiously recorded the meeting and publicly filed the transcript, argued for a costs reduction as a public interest litigant.

The court rejected the public interest litigant argument for these specific motions.

The court also declined to award substantial indemnity costs, finding the conduct did not rise to the level of reprehensible.

The court awarded partial indemnity costs, adjusting the requested hourly rates downwards, fixing costs at $136,315.

The applicants, Vikram Singh and his nomination campaign, initiated a judicial review application challenging a PC Party nomination.

This decision addresses two motions: one by respondent Bob Stanley (supported by other respondents) seeking a permanent order to expunge a secretly recorded meeting transcript and related affidavit paragraphs from the record due to settlement privilege and confidentiality, and a cross-motion by the applicants to set aside an interim expungement order.

The court found that the communications at the meeting were subject to settlement privilege, as they were made in furtherance of settlement with an express or implied intention of non-disclosure.

The applicants' arguments for a public interest exception to settlement privilege, based on allegations of electoral fraud, were rejected, with the court distinguishing such claims from exceptions for perjury or fraud in procuring a settlement.

The court granted the respondents' motion, ordering the expungement of the contested materials, prohibiting further disclosure, and requiring third parties to return or delete copies.

However, it declined to compel the applicants to destroy their own copies.

The motion file was also ordered to be sealed. interesting_citations_summary: > This decision offers a comprehensive application of settlement privilege principles, particularly regarding unscripted meetings.

It clarifies that the privilege applies when the meeting's purpose is to effect settlement, even if individual statements lack a "hint of compromise" and that participants need not constantly monitor their words.

The court firmly rejects a broad "public interest" exception to settlement privilege for allegations of electoral fraud, distinguishing it from established exceptions like perjury.

It also emphasizes the importance of defining the evidentiary record early in litigation to avoid procedural complexities. final_judgement: > The court granted the respondents' motion, ordering the expungement of Exhibit "I" (the secretly recorded transcript) and paragraphs 32-35 from Vikram Singh's affidavit.

It prohibited the applicants and associated persons from disclosing or disseminating the transcript or communications from the meeting.

Third parties with knowledge of the order who received copies were required to return or permanently delete them.

The court declined to order Singh to destroy his own copies and ordered the court file for these motions to be sealed as confidential. winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2017 decision_number: 4168 file_number: "17-00061903-00OT" source: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4168/2017onsc4168.html" cited_cases: legislation: - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" - title: "Courts of Justice Act, R.S.O. 1990, c.

C.43" url: "https://www.ontario.ca/laws/statute/90c43" case_law: - title: "Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623" url: "https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13090/index.do" - title: "Stans Energy Corp. v. Kyrgyz Republic, 2015 ONSC 3236 (Div.

Ct.)" url: "https://www.canlii.org/en/on/onscdc/doc/2015/2015onsc3236/2015onsc3236.html" - title: "United States v. Friedland, 1996 CarswellOnt 5566 (Gen. Div.)" url: "https://www.canlii.org/en/on/onsc/doc/1996/1996canlii7999/1996canlii7999.html" - title: "Forestwood Co-Operative Homes Inc. v. Pritz, [2002] O.J. No. 550 (Div.

Ct.)" url: "https://www.canlii.org/en/on/onscdc/doc/2002/2002canlii41900/2002canlii41900.html" - title: "1196303 Ontario Inc. v. Glen Grove Suites Inc., 2012 ONSC 758" url: "https://www.canlii.org/en/on/onsc/doc/2012/2012onsc758/2012onsc758.html" - title: "Bramer v. The Toronto Lawn Tennis Club, 2017 ONSC 1737" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc1737/2017onsc1737.html" - title: "Hallman v. Pure Spousal Trust (Trustee of), 2009 ONSC 49643" url: "https://www.canlii.org/en/on/onsc/doc/2009/2009onsc49643/2009onsc49643.html" - title: "Sierra Club Canada v. Ontario (Ministry of Natural Resources), 2011 ONSC 4086" url: "https://www.canlii.org/en/on/onsc/doc/2011/2011onsc4086/2011onsc4086.html" - title: "Temex Resources Corp. v. Walker, 2014 ONSC 3170" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc3170/2014onsc3170.html" - title: "Hollinger Inc. (Re), 2011 ONCA 579" url: "https://www.canlii.org/en/on/onca/doc/2011/2011onca579/2011onca579.html" - title: "Middlekamp v. Fraser Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (B.C.C.A.)" url: "https://www.canlii.org/en/bc/bcca/doc/1992/1992canlii4039/1992canlii4039.html" - title: "Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10, [2013] A.J. No. 10 (C.A.)" url: "https://www.canlii.org/en/ab/abca/doc/2013/2013abca10/2013abca10.html" - title: "Boogaard v. Canada (Attorney General), 2014 FC 150" url: "https://www.canlii.org/en/ca/fct/doc/2014/2014fc150/2014fc150.html" - title: "Boogaard v. Canada (Attorney General), 2015 FCA 150" url: "https://www.canlii.org/en/ca/fca/doc/2015/2015fca150/2015fca150.html" - title: "East Guardian v. Mazur, 2014 ONSC 6403" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc6403/2014onsc6403.html" - title: "Unilever Plc v. The Proctor & Gamble Company, [2000] 1 W.L.R. 2436" - title: "Brown v. Brown, 2013 NBQB 269" url: "https://www.canlii.org/en/nb/nbqb/doc/2013/2013nbqb269/2013nbqb269.html" - title: "Berry v. Cypost Corp., 2003 BCSC 1827" url: "https://www.canlii.org/en/bc/bcsc/doc/2003/2003bcsc1827/2003bcsc1827.html" - title: "The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2013 ONSC 6297" url: "https://www.canlii.org/en/on/onsc/doc/2013/2013onsc6297/2013onsc6297.html" - title: "Slavutych v. Baker, 1975 CarswellAlta 39 (S.C.C.)" url: "https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5490/index.do" - title: "Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574" url: "https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/500/index.do" areas_of_law: - Civil Procedure - Evidence - Settlement Privilege - Confidentiality - Judicial Review keywords: - Settlement privilege - Confidentiality - Motion to expunge - Secret recording - Judicial review - Full and fair disclosure - Public interest exception - Rules of Civil Procedure - Ontario Superior Court of Justice --- COURT FILE NO.: 17-00061903-00OT DATE: 20170706 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: VIKRAM SINGH and VIKRAM SINGH ONTARIO PC NOMINATION CAMPAIGN Applicants – and – PROGRESSIVE CONSERVATIVE PARTY OF ONTARIO, PATRICK BROWN, RICK DYKSTRA, BOB STANLEY and LOGAN BUGEJA Respondents **Counsel:** Richard Macklin, Neil G. Wilson and Spencer Wong, for the Applicants Matthew P. Gottlieb, Paul Fruitman and Brad Vermeersch, for the Respondent Bob Stanley **HEARD:** June 27 and 28, 2017 Cavanagh, j. ## Introduction [1] Vikram Singh (“Singh”) commenced a judicial review application on June 13, 2017 seeking an order (i) setting aside the decision of the Progressive Conservative Party of Ontario (“PC Party”) to declare Benjamin Levitt (“Levitt”) the PC Party nominee for Member of Provincial Parliament for the riding of Hamilton West – Ancaster – Dundas (“Hamilton West”), (ii) quashing the decision of Patrick Brown (“Brown”), leader of the PC Party, to terminate Singh’s internal appeal of the nomination proceedings, and (iii) declaring Singh to be the PC Party nominee for Hamilton West or, alternatively, that the matter be remitted to the PC Party to hold a new nomination meeting.

The motions before me are brought in Singh’s judicial review application. [2] In their Notice of Application, Singh and his nomination campaign plead that the nomination meeting was tainted by (i) a predetermination by PC Party officials prior to voting that Levitt would be the successful candidate, (ii) wrongful insertion of false ballots in ballot boxes in favour of Levitt, and (iii) exclusion of scrutineers from monitoring of the ballot counting and credential forms process for the ballot box in issue. [3] Singh’s application record was publicly filed at the court offices in Hamilton on June 13, 2017.

This public filing led to the motions before me. [4] Singh’s application materials disclosed communications that were made at a meeting (the “Meeting”) that Singh and several of his supporters attended on May 24, 2017 with Walied Soliman (“Soliman”), the Chairman of Patrick Brown’s campaign for the 2018 Ontario general election.

The materials included a transcript (the “Transcript”) of a considerable portion of the Meeting that was made from an audio recording (the “Recording”) that Singh secretly made at the meeting. [5] I made an interim order on June 14, 2017 on a motion by Bob Stanley (“Stanley”), a personal respondent and the Executive Director of the PC Party, and supported by the other respondents, in the absence of Singh (the “Interim Order”).

The Interim Order was made to preserve the status quo and protect the interests of the respondents in having information which they claim is privileged and confidential protected from disclosure until the claims of privilege and confidentiality are finally adjudicated.

The Interim Order, effective for a period of 10 days, expunged the Transcript and three paragraphs from Singh’s affidavit from the record in this application and prohibited disclosure or dissemination of the Transcript or communications that took place at the Meeting.

The Interim Order was extended while the motions before me were heard and it remains in effect until further order of this court. [6] There are two motions before me. [7] Stanley, in his capacity as Executive Director of the PC Party and on its behalf, supported by the PC Party, moves for a permanent order expunging the Transcript from the record and striking out and expunging three paragraphs from Singh’s affidavit that disclose communications at the Meeting, together with related relief.

In support of his motion, Stanley submits that the Transcript and the communications at the Meeting are protected by settlement privilege and confidential and that Singh violated the privilege attaching to this information and breached a duty of confidence by disclosing the Transcript and communications at the Meeting and by seeking to admit this information into evidence on his application. [8] Singh moves for an order setting aside the Interim Order, with prejudice.

Singh takes the position that he is lawfully entitled to disclose the Transcript and other communications at the Meeting to others and to include the Transcript and other communications at the Meeting in his evidence in support of his judicial review application. [9] In his factum for these motions, Singh submitted, in the alternative to an outright dismissal of Stanley’s motion, that Stanley’s motion should proceed together with the main application and the judge hearing the application for judicial review can then determine whether or not the Transcript is admissible.

During argument of these motions, after questioning by me, Singh’s counsel submitted that Singh is no longer relying upon grounds for his motion other than that Stanley failed to make full and fair disclosure when he obtained the Interim Order.

If he is not successful on this ground, Singh requests that Stanley’s motion be adjourned to be heard by the application judge in Hamilton. [10] For the following reasons, I conclude that the communications at the Meeting (and the Recording and Transcript) are properly subject to settlement privilege.

As such, they are protected from disclosure to others and they are inadmissible in evidence on Singh’s judicial review application. ## Background Facts ### Nomination Meeting and Appeal [11] Singh is a criminal lawyer who also practices in civil courts.

Singh was approved by the PC Party for nomination to become the candidate for the PC Party for the Hamilton West riding. [12] The nomination meeting for the Hamilton West riding took place on Sunday, May 7, 2017.

Singh was not announced as the successful candidate at the nomination meeting.

Levitt was announced as the successful candidate. [13] Singh delivered a notice of appeal dated May 10, 2017 to the PC Party pursuant to the PC Party internal rules and constitution.

In his notice of appeal, Singh stated, among other things, that there was a blatant disregard for due process at the nomination meeting that resulted in discrepancies which seriously undermine the integrity of the nomination process.

Singh stated that officials of the PC Party failed to conduct the nomination meeting in a transparent, reasonable and fair manner resulting in an undemocratic vote.

Singh stated that immediate intervention was required due to the flagrant, discriminatory and biased decisions made by PC Party officials against Singh supporters at the credential desk and at the ballot boxes.

Singh requested an order disqualifying Levitt as the nominated candidate and declaring Singh as the nominated candidate. ### The Meeting with Soliman [14] On May 23, 2017 Gursharan “Bobby” Sidhu (“Sidhu”), one of Singh’s supporters, requested by email a meeting with Soliman to “discuss HWAD nomination”.

Sidhu copied Singh with his email and requested that the other individuals who were copied be invited.

These persons were Amanpreet Bal (“Bal”), Singh’s chief scrutineer, and Jaskarn Sandhu (“Sandhu”), Singh’s campaign manager.

In his email, Sidhu stated “[i]t’s a very important issue and needs to be dealt with asap”.

Soliman sent an email invitation to Singh, Bal, Sandhu and Sidhu on May 23, 2017 for a meeting to be held at Soliman’s law offices on May 24, 2017 at 4:00 p.m.

The subject of the invitation is “Meeting to discuss HWAD nomination”. [15] The Meeting was held on May 24, 2017.

In attendance were Soliman on behalf of the PC Party, Singh, Sidhu, Sandhu, Bal, and Randeep Chatha (“Chatha”), who had also supported Singh’s candidacy.

Soliman and Singh are practising lawyers.

Sandhu is a non-practising lawyer.

Sidhu owns and operates a paralegal consulting firm.

All of the persons who attended the meeting with Soliman had supported Singh’s candidacy. [16] Singh arrived at the Meeting at 4:30 p.m. with his lawyer.

The other participants were already there.

He was immediately told by Soliman that this was a private meeting and that his lawyer could not stay.

I will address the evidence concerning the other discussions at this stage of the Meeting later in my reasons.

Singh and his lawyer left the room to confer.

According to Singh’s evidence, after his lawyer was expelled, prior to re-entering the room, he turned on his recording device.

The Meeting proceeded. ### Notification by PC Party to Singh that Appeal is Moot [17] By letter dated June 6, 2017 transmitted by email to Singh’s lawyer, Singh was notified that (i) Brown is appointing Levitt to be the PC Party candidate for the Hamilton West riding in the next election, (ii) Brown will not under any circumstances be signing endorsement papers for Singh and, accordingly, (iii) Singh’s appeal is moot. ### Singh’s Judicial Review Application [18] Singh’s application record for his judicial review application was served on the afternoon of June 13, 2017 and filed with the court office in Hamilton that afternoon.

The application record appends the Transcript as an exhibit to Singh’s affidavit and, in three paragraphs of Singh’s affidavit, he refers to communications at the Meeting. [19] An email was sent by Stanley’s counsel to Singh’s counsel at 1:05 on June 14 to advise that Stanley was seeking an urgent order expunging the Transcript and portions of the affidavit relating to it as it contains material protected by privilege and confidentiality.

Singh’s lawyer was not able to read the email until about 2:30.

He responded at 3:08 that he was in his firm’s Vaughan office, he did not have a copy of Stanley’s motion materials, and he was attempting to get to court. [20] Singh gave a copy of his application record to the CBC, The Globe and Mail, and The Toronto Star, electronically.

Singh believes that he was told by Chatha on June 14 (he was not sure of the time) that the PC Party was obtaining affidavits to be used to try to stop Singh from using the Transcript.

Singh could not say whether or not he sent the application record to media representatives before or after he was told by Chatha that affidavits were being obtained to be so used by the PC Party. ### Stanley’s motion that resulted in the Interim Order [21] Stanley’s motion for interim relief came before me as a matter of urgency in the mid-afternoon of June 14, 2017.

Stanley’s counsel appeared as did counsel for the other respondents.

At the outset of the hearing, I was informed by Stanley’s counsel that attempts that had been made to notify Singh’s counsel of the motion to be brought before me had been unsuccessful because he had not responded to an email message and phone messages left with his assistant.

I asked Stanley’s counsel to make further efforts.

Stanley’s counsel was able to reach Mr. Macklin, Singh’s lawyer, but he was at his firm’s Vaughan office and advised that he would be unable to attend in court until about 5:00 p.m. [22] On the motion that resulted in the Interim Order, Stanley presented evidence from Soliman that: a.

The Meeting was convened for the express purpose of attempting to find a resolution “to the dispute” and to Singh’s appeal and in that context, for the parties to have a frank discussion about Singh’s allegations. b.

Soliman expressly stated at the outset of the Meeting that it was being held on a without prejudice and confidential basis.

He described the meeting as a “family” meeting which, he said, is a term of endearment he regularly uses to describe members of the PC Party. c.

He also recalled expressly stating at the outset of the Meeting that it cannot be recorded and he did not consent to any recording of the Meeting. d.

He would not have taken part in the Meeting if these conditions were not agreed to at the outset. e.

He made it clear that the Meeting would only proceed on the basis that it be confidential and all of the participants at the Meeting, including Singh, agree to these terms before they started the meeting.

Had he thought that Singh had not agreed to these terms, or had he known that Singh was secretly recording the Meeting, he would have immediately terminated the meeting and left the room. [23] Stanley also provided affidavit evidence from Sandhu, Bal and Sidhu in support of his motion. [24] Sandhu’s affidavit evidence was that: a.

At the start of the meeting, Soliman said that it was a “without prejudice” meeting and that everyone would be speaking “off the record”.

Soliman also said that it was “like a family meeting”. b.

Sandhu also recalls Singh saying that the meeting was being held “without prejudice”. c.

It was clear to him and everyone else at the meeting that everything said at the meeting was confidential, and that nothing would be or could be disclosed to anyone outside the meeting. d.

He understood that everyone at the meeting agreed to these conditions and it was on that basis that the meeting proceeded. e.

Had it not been agreed by all that the meeting was to be confidential, he would not have taken part in the meeting.

Had he been told that anyone was recording the discussion, he would have left the meeting. [25] Bal provided affidavit evidence that was in substance the same as the affidavit evidence given by Sandhu, although he did not state that he recalled that Singh also said that the meeting was being held “without prejudice”.

Sidhu gave affidavit evidence that was in substance the same as the affidavit evidence given by Bal. [26] Stanley also presented evidence through Soliman’s affidavit that Singh secretly recorded the Meeting and that he had reviewed the Transcript.

Soliman’s evidence was that the Transcript omits the opening portion of the Meeting where the participants objected to the presence of Singh’s lawyer and where Soliman confirmed that the Meeting was confidential, without prejudice, and not to be recorded.

Soliman’s evidence was that from his review of the Transcript, it begins shortly after he confirmed that the Meeting was being conducted on a confidential, without prejudice basis, and that it was not to be recorded. [27] Stanley submitted in support of his motion for an interim order that Singh’s filing of the Transcript as an exhibit to his affidavit and referencing in his affidavit the matters discussed in the Meeting violated the privilege that attaches to the matters discussed at the Meeting and breached the duty of confidence that Singh owed to the other participants at the Meeting.

Stanley submitted that, if the Transcript and any references to the contents of the Transcript are not struck from the record, then the PC party and the other respondents will suffer irreparable harm. [28] After hearing submissions from Stanley’s counsel, including his advice that Singh’s application record and the Transcript were available for my review, if needed, I retired to write the following endorsement: The moving party Stanley moves for (i) an order expunging from the affidavit of Mr. Singh sworn June 12, 2017 Exhibit I and striking paras. 32-35 of the Singh affidavit, and (ii) prohibiting the Applicants and other persons in possession of the Transcript and with knowledge of the order sought from disclosing or disseminating the Transcript (or other communications that took place at the Meeting in question).

The Transcript is of a tape recording of a meeting held on May 24, 2017.

The background facts and other evidence relating to the meeting are set out in the affidavit of Walied Solomon (sic).

The evidence before me makes it clear that the meeting in question was held and proceeded on a without prejudice basis and on the express agreement that it was to be confidential.

The meeting was in furtherance of settlement of a dispute between the Applicant/Responding Party Singh and the PC Party.

At the outset of the hearing of this motion, I asked counsel for the moving party to again (he had already made several attempts) try to contact counsel for the Applicants/Responding Parties.

Counsel was able to do so, but Mr. Macklin is in his firm’s Vaughan office and, although he agreed to come to court at my request, is not able to be here until about 5:00 p.m.

The Application Record is believed to have been publicly filed in the Hamilton Court Office and it contains the Transcript in question.

Because of the urgency of preserving the status quo and protecting the claim of confidentiality which has been advanced, I grant an interim order on an ex parte basis to (i) strike from the Record Ex.

I to the Singh Affidavit and paras. 32-35 of the Singh affidavit and (ii) prohibit the Applicants and any person with knowledge of this Order who obtained a copy of the Transcript or knowledge of the communications that took place at the Meeting from disclosing or disseminating the Transcript or the communications to any other person for a period of 10 days or further order of this Court.

I approve the form of order that has been submitted.

In making this interim Order, I rely upon the submissions of counsel for the moving party at paras. 21-48 of his factum.

I am satisfied on the authorities cited that the interim order is necessary to preserve the status quo and protect the interests of the moving party in having legitimately without prejudice communications expunged from the record of proceedings and in protecting confidential information from being disclosed.

I am satisfied that the moving party has satisfied the requirements for an interim injunction because, if the information is confidential (and the evidence before me supports that it is) if the information is publicly disclosed it will become part of the public record and it will no longer be confidential.

For these reasons, the interim order is granted in the form presented, as amended.

This endorsement and the order shall be served forthwith on counsel for the Applicants and, as an ex parte order, it is in force for 10 days or until other order of this Court. [29] After making this order, court was adjourned in order to allow Stanley’s counsel to take steps to enforce the order by having Exhibit I (the Transcript) and paras. 32-35 of Singh’s affidavit removed from the publicly filed application record in the court office in Hamilton. [30] At approximately 5:45 p.m. that day, Singh’s counsel appeared in court after navigating through dense traffic from his office in Vaughan.

After hearing further submissions from him and from Stanley’s counsel I made the following endorsement: Mr. Macklin has appeared at my request and addressed the interim order that I made earlier today.

Mr. Macklin submits that the interim order is overly broad, that it is in substance a publication ban and that it is unreasonable to expect his client to comply with paragraphs 5 and 6 by contacting and providing names of persons who have been advised of the communications at the Meeting.

Mr. Macklin opposes the granting of the ex parte interim order, and his submissions are not taken as ones limiting his right to make full submissions to set aside the interim order, in whole or in part.

Counsel for the moving party submits that the order as made is as narrow as it could be to protect the legitimate interests that his client asserts based upon the evidence before me.

In the circumstances, I am not changing my order made earlier today.

This decision is without prejudice to the right of Mr. Macklin on behalf of the Applicants/Responding Party’s to move to set aside my order on all the grounds that may be available to a party affected by an ex parte order.

During his submissions, Mr. Macklin advised that the Transcript had already been provided to representatives of the media. ### Arrangements for and hearing of the motions before me [31] On the afternoon of Thursday, June 15, 2017 counsel for the parties appeared before me to discuss the schedule for Stanley’s motion to extend the interim order and make it permanent and Singh’s motion to set aside the interim order.

A schedule was agreed upon for these motions to be heard on June 27, 2017. [32] The motions were heard for a full day and into the late afternoon on June 27 (ending at about 5:45 p.m.) and on the afternoon of June 28, 2017. ## Analysis [33] The following issues arise on these motions: a.

Did Stanley fail to make full and fair disclosure at the hearing of the motion that resulted in the Interim Order?

If so, should the Interim Order be set aside without a fresh order in its place? b.

If the Interim Order is not set aside for failure to make full and fair disclosure, should Stanley’s motion be adjourned to be heard by the judge in Hamilton who will hear Singh’s application on its merits?

If Stanley’s motion is not adjourned: c.

Are the communications at the Meeting (including the Transcript, the Recording, and the three paragraphs in Singh’s affidavit) prima facie subject to settlement privilege? d.

Does an exception to settlement privilege apply? e.

Did Singh commit a breach of confidence by including the Transcript and referring to its contents in his application record, and by sharing the Transcript and its contents with others?

If so, is there an exception that applies? f.

If the communications at the Meeting are protected by settlement privilege or otherwise confidential, what is the appropriate remedy?

I will address these issues in turn. ### a.

Did Stanley fail to make full and fair disclosure to the court at the hearing of the motion that resulted in the Interim Order?

If so, should the Interim Order be set aside without a fresh order in its place? [34] A party who moves without notice is under a duty to make full, fair and frank disclosure of all material facts and the failure to do so in itself is sufficient ground for setting aside any order obtained on the motion. [35] Singh submits that Stanley failed to discharge his duty in the following respects: a.

Stanley’s failure to file Singh’s application record and the Transcript and to specifically draw the Court’s attention to their contents was a serious instance of non-disclosure warranting setting aside the order.

Singh submits that reference to the Transcript was required in order to allow the Court to determine (a) whether there was any discussion of settlement at the Meeting; (b) whether there was any offer of compromise by PC Party or its representatives; (c) whether the matters were intended to be confidential; and (d) whether an exception to settlement privilege applied. b.

Stanley’s materials provide a misleading description of the nature of the allegations made by Singh where Soliman gave evidence that he became aware that Singh was alleging that the vote at the nomination meeting was not conducted in a fair and impartial manner and that voting irregularities had occurred at the meeting.

Singh submits that this description minimizes the significance of what is at issue in this proceeding, that is, that the case involves allegations of electoral fraud that strongly implicate the leader of the PC Party.

Singh submits that the nature of the allegations was necessary for the Court to determine whether the use of the transcript was justifiable in accordance with, amongst others, the public interest exception case law. c.

The law presented to do the Court was staggeringly one-sided and, at least, the requirement for compromise in settlement discussions, the public interest exception to settlement privilege, and the British case law (that Singh submits has been adopted in Canada) that precludes a finding of breach of confidence when the confidence pertains to impropriety should have been presented to the Court.

Singh submits that Stanley did not raise any of the points of law which militated against his position. [36] Stanley submits that there was no failure to make full and fair disclosure at the hearing of the motion for interim relief on June 14.

He submits that the Court’s authority to set aside an ex parte order for failure to make full and fair disclosure is discretionary and fact-specific and that such an order may be set aside only if the moving party omitted a fact that may tend to have an exculpatory benefit to a responding party.

Stanley submits that motions without notice are usually brought quickly and with little time for preparation of material, and the Court will not deprive a moving party of a remedy merely because there are imperfections in an affidavit or because inconsequential facts have not been disclosed. [37] Stanley also submits: a.

The Transcript and Singh’s application record were available for inspection at the hearing of the motion for interim relief. b.

Soliman’s evidence was that the Transcript omits the opening portion of the Meeting where he confirmed that the Meeting was confidential and without prejudice.

The portion of the Transcript where the words “without prejudice” appear are not exculpatory and would not have possibly changed the result of the motion.

For this reason, it was not necessary to direct the Court to this portion of the Transcript. c.

Stanley does not agree that it was necessary to go through the entire Transcript to show that, as Singh submits on the motions before me, there was no “hint of compromise” with respect to Singh’s appeal and that, therefore, the Meeting was not protected by settlement privilege.

Stanley submits that he does agree with the legal argument advanced by Singh, that he did not reasonably anticipate that this argument would be advanced and, therefore, he could not reasonably have been expected to disclose this legal argument to the Court. d.

Stanley does not agree that there is any basis for a public interest exception to settlement privilege in this case, he did not reasonably expect that Singh would raise such an exception in opposition to Stanley’s motion and, therefore, he could not reasonably have been expected to disclose this legal argument to the Court. e.

Stanley provided the Court with the leading authority in Canada on settlement privilege, the decision of the Supreme Court of Canada in [Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13090/index.do), [2013] 2 S.C.R. 623, which identifies the test for determining the existence of settlement privilege. [38] Stanley denies that there was a failure to make proper disclosure on the motion that resulted in the Interim Order.

Stanley submits that, if I were to conclude otherwise, I should exercise my discretion to make a fresh order, because to set aside the Interim Order without a fresh order would be unjust in the circumstances. [39] The legal principles respect to a party’s duty to make full and fair disclosure of all material facts on a motion made without notice are not in dispute on this motion.

The duty to make full and fair disclosure is in [Rule 39.01(6) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194).

The importance of full and frank disclosure of material facts on an ex parte motion was discussed by Sharpe J., as he then was, in [United States v. Friedland, 1996 CarswellOnt 5566 (Gen. Div.)](https://www.canlii.org/en/on/onsc/doc/1996/1996canlii7999/1996canlii7999.html) at paras. 26-28: 27. … the law imposes an exceptional duty on the party who seeks ex parte relief.

That party is not entitled to present only its side of the case in the best possible light, as it would if the other side were present.

Rather, it is incumbent on the moving party to make a balanced presentation of the facts and law.

The moving party must state its own case fairly and must inform the Court of any points of fact or law known to it which favour the other side.

The duty of full and frank disclosure is required to mitigate the obvious risk of injustice inherent in a situation where a Judge is asked to grant an order without hearing from the other side. 28.

If the party seeking ex parte relief fails to abide by this duty to make full and frank disclosure by omitting or misrepresenting material facts, the opposite party is entitled to have the injunction set aside.

That is the price the Plaintiff must pay for failure to live up to the duty imposed by the law.

Were it otherwise, the duty would be empty and the law would be powerless to protect the absent party. [40] The question of what is a material fact was addressed by the Divisional Court in [Stans Energy Corp. v. Kyrgyz Republic, 2015 ONSC 3236 (Div.

Ct.)](https://www.canlii.org/en/on/onscdc/doc/2015/2015onsc3236/2015onsc3236.html).

Stans involved a motion to set aside a Mareva injunction that was obtained without notice.

The Divisional Court in *Stans*, at paras. 5 and 39, adopted the statement in [Forestwood Co-Operative Homes Inc. v. Pritz, [2002] O.J. No. 550 (Div.

Ct.)](https://www.canlii.org/en/on/onscdc/doc/2002/2002canlii41900/2002canlii41900.html), at para. 26, that “any fact that would have been weighed or considered by the motions judge in deciding the issues, regardless of whether its disclosure would have changed the outcome, is material”. [41] The application in practice of the test for materiality expressed in *Forestwood* and *Stans* does not mean that, on a motion to set aside an order obtained without notice for material non-disclosure, every fact that the moving party submits would have been put before the judge if notice had been given is material.

The judicial exercise of considering whether a given fact is or is not material in deciding the issues does not, simply because the judge must undertake this judicial exercise, make the fact material.

In my view, on a motion to set aside an ex parte order for material non-disclosure, application of the test for materiality expressed in *Forestwood* and *Stans* would require a judge to consider whether the omitted fact could possibly have influenced the motion judge who made the ex parte order in deciding the issues on the motion, regardless of whether its disclosure would have changed the outcome. [42] On a motion to set aside an ex parte order for material non-disclosure, in considering whether a given fact is or is not material, it is necessary, in my view, for the judge to take into consideration the nature of the ex parte order that was sought and made.

The Interim Order requested by Stanley was not an Anton Piller order or a Mareva injunction.

These types of orders grant very powerful rights to the moving party that, when exercised, can be highly prejudicial to the responding party.

On these types of motions, the merits of the underlying claim are usually very prominent. [43] The Interim Order, in contrast, was made to preserve the status quo.

The Interim Order was temporary and in effect for 10 days.

There was no final decision made that the Transcript or the statements in the three paragraphs of Singh’s affidavit are privileged or confidential.

With respect to the merits of the claims of privilege and confidentiality asserted by Stanley and the PC Party, I only needed to find that there was a genuine issue requiring adjudication concerning whether the communications at the Meeting were privileged and confidential and, as I wrote in my endorsement, this was clear on the evidence before me.

The effect of the Interim Order was to enable Stanley and the PC Party to prevent further disclosure of information over which they claimed privilege and confidentiality so that the protection from disclosure that the law would afford them if their claims were held to be successful would not be lost before their claims were adjudicated on a proper record. [44] When I apply the test for materiality in *Forestwood* and *Stans* to the facts (and case law) that Singh submits should have been brought to my attention on the motion for interim relief, I conclude that there was no failure by Stanley to make full and fair disclosure of material facts.

The matters in the Transcript and from Singh’s application record which, Singh submits, should have been specifically drawn to my attention, while relevant and material on the motions before me now, could not, in my view, have possibly influenced a motion judge in deciding whether to grant an interim order to preserve the status quo.

Also, the other factual matters and cases that Singh submits should have been drawn to my attention, while relevant and material on the motions before me now, could not, in my view, have possibly influenced a motion judge in deciding whether to make an interim order preserving the status quo.

This is because the issue on the motion for interim relief, whether an order to preserve the status quo should be made, is different than the issues on the motions that are before me now. [45] Singh has not shown that Stanley failed to make full and fair disclosure on the motion for interim relief to preserve the status quo that resulted in the Interim Order.

I will not set aside the Interim Order on this ground. ### b.

Should Stanley’s motion be adjourned to be heard by the judge in Hamilton who will hear Singh’s application on its merits? [46] Singh submits that, if I decline to set aside the Interim Order for material non-disclosure, I should exercise my discretion to adjourn Stanley’s motion to the judge in Hamilton who will hear Singh’s judicial review application on its merits.

In order to address this submission, some context is needed. [47] After the Interim Order was made on June 14, 2017, counsel appeared before me on June 15 on a case conference to discuss the schedule for the motions to be made by the parties.

Each of Stanley and Singh intended to bring a motion, and the motions were scheduled to be heard on June 27, 2017.

Singh then served his motion materials, including a Notice of Motion dated June 17 together with a supporting affidavit sworn by Singh on June 15.

In his Notice of Motion, Singh requests “an order setting aside the without notice order of Justice Cavanagh dated June 14, 2017, and entered on June 15, 2017, with prejudice”. [48] Included among the grounds for Singh’s motion in the Notice of Motion are that (i) the Meeting was not covered by settlement privilege and Singh’s use of the Transcript did not amount to a breach of confidence, and (ii) Stanley failed to make full and fair disclosure when he obtained the without notice order. [49] There was no request in Singh’s Notice of Motion that I exercise discretion not to decide the issues concerning the admissibility of evidence of the Meeting, including the Transcript, that Singh raised in his Notice of Motion and that Stanley is also asking me to decide on his motion.

To the contrary, Singh’s motion put these matters squarely in issue and he asked for a “with prejudice” order to be grounded in judicial conclusions that the Meeting was not covered by settlement privilege and that Singh’s use of the Transcript did not amount to a breach of confidence. [50] In Singh’s factum for the motions before me, Singh submits, in the alternative to an outright dismissal of Stanley’s motion to strike portions of Singh’s affidavit in the judicial review application, that Stanley’s motion to strike should proceed together with the main application.

Singh submits that the judge hearing the application for judicial review can then determine whether or not the Transcript is admissible.

In his factum, Singh submits that the evidentiary record is incomplete as the respondents have not yet filed responding materials on the application and they objected to cross-examination directed to the underlying merits of the judicial review application.

Singh relies in his factum on jurisprudence supporting a general rule that the proper time and place to request a court to strike out, in whole or in part, an affidavit filed in support of a motion or application is on the return of the main motion or application. [51] Therefore, when these motions came before me for hearing on June 27, Singh’s submission was that I should decide on the existing record whether the communications at the Meeting and the Transcript are inadmissible and protected from disclosure because of settlement privilege and confidentiality so long as I decided these questions in favour of Singh.

If I was not inclined to do so, Singh was requesting that I exercise my discretion to direct that these questions be heard and decided by the judge in Hamilton who will hear the judicial review application on its merits.

When I put to Singh’s counsel during the course of his submissions my view that this approach is inherently unfair to the respondents, Singh agreed to limit the grounds for his motion to set aside the Interim Order, with prejudice, to his submission that Stanley failed to make full and fair disclosure when he obtained the Interim Order.

In his reply submissions, Singh’s counsel submitted that because the judicial review application involves issues that affect the community in Hamilton, the judge in Hamilton who will adjudicate the issues on this application should be able to do so on full record without concern that something was missed. [52] I will take the evolution of Singh’s position into account when I exercise my discretion on whether to decline to decide the issues before me on the existing record. [53] Singh relies upon the decision of Brown J. (as he then was) in [1196303 Ontario Inc. v. Glen Grove Suites Inc., 2012 ONSC 758](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc758/2012onsc758.html).

In that case, Brown J. stated that as a general rule the proper time and place to request a court to strike out, in whole or in part, an affidavit filed in support of a motion or application is on the return of the main motion or application.

Brown J. expressed his view that it would be inappropriate for a judge who will not hear the motion on its merits to purport to bind the hearing judge by determining on a limited and incomplete record issues concerning the receipt or admissibility of evidence prior to the hearing of the motion or application.

Brown J. considered that pre-emptive motions to strike out affidavits should only be brought in the rarest and most extraordinary of cases. [54] I accept that, while each case must be considered in its own context, generally evidence should not be struck out on an interlocutory motion unless there is some special reason to do so: [Bramer v. The Toronto Lawn Tennis Club, 2017 ONSC 1737](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc1737/2017onsc1737.html), at para. 22, and the authorities cited in that case. [55] Stanley submits that this is a case where it is critical that the court decide as soon as possible whether to expunge the Transcript and references to the communications at the Meeting from the record to prevent dissemination of privileged material.

Stanley submits that the issues on these motions have been fully briefed and argued, with great effort, and that the evidentiary record is fully developed. [56] Stanley relies upon another decision of Brown J. (as he then was) in [Hallman v. Pure Spousal Trust (Trustee of), 2009 ONSC 49643](https://www.canlii.org/en/on/onsc/doc/2009/2009onsc49643/2009onsc49643.html).

In *Hallman*, there was a motion for an order expunging an exhibit and reference to a settlement proposal from an affidavit on the ground that the evidence was subject to settlement privilege.

Brown J. granted the motion and made an order expunging the evidence that was subject to settlement privilege. [57] Stanley also relies upon the decision of the Divisional Court in [Sierra Club Canada v. Ontario (Ministry of Natural Resources), 2011 ONSC 4086](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc4086/2011onsc4086.html).

In that case, the Divisional Court considered a preliminary motion brought at the opening of a three-day hearing to strike affidavits.

The court expressed the view that the motion should have been brought prior to the hearing by the panel in order to clarify the contents of the record prior to factums being filed.

The court wrote that proceeding in such a manner would have enabled the parties to define the issues for the hearing based upon properly admissible evidence.

The Court explained its concern: To fail to define the appropriate record for the Court before the hearing encourages the proliferation of collateral issues, as occurred in this application.

Filing material by one party inevitably precipitates a response from the opposite party.

The consequence of failing to define the record is a proceeding before this court that becomes unnecessarily complicated, expensive and lengthy.

For the parties and for the court, the ground is continually shifting, and the core issues may be eclipsed by the procedural issues.

Stanley submits that if the motions are not decided now, the proliferation of collateral issues that the court cautioned against in *Sierra Club* will happen in this case. [58] I have considered Singh’s submission that the evidentiary record before me is not complete, and that additional evidence to be filed on the judicial review application is necessary for a judge to make a just decision on the motions before me.

I disagree.

The evidentiary record before me includes evidence from all of the participants at the Meeting, and they have all been examined.

The documents exchanged by Singh, his supporters and Soliman and the PC Party before the Meeting that may shed light on the purpose for the Meeting are in the record.

The parties have delivered lengthy factums that thoroughly address the material facts and legal principles in relation to the issues on the motions before me.

Singh requested that I decide the motions before me on their merits when he brought his motion, and only changed his position during his counsel’s submissions.

I heard full submissions from the parties on the merits of the motions over two days. [59] In my view, the concerns expressed by the Divisional Court in *Sierra Club* also apply here.

This is one of those cases where, in my view, it is proper to define the appropriate evidentiary record before the hearing of the application on its merits.

The uncertainty about whether the Transcript is or is not admissible in evidence and properly subject to settlement privilege or otherwise confidential needs to be resolved now, and I exercise my discretion to decide the motions on the record before me. ### c.

Are the communications at the Meeting (including the Transcript and the information in three paragraphs in Singh’s affidavit) prima facie protected from disclosure to others and inadmissible in evidence on Singh’s judicial review application because they are subject to settlement privilege? [60] Settlement privilege is a class privilege that protects communications between parties in furtherance of settlement even if the communications do not result in a settlement.

Where privileged communications are included in an affidavit or notice of motion, r. 25.11 requires that the privileged communications be struck from the record to protect the privilege: *Hallman*, at paras. 23-24; [Temex Resources Corp. v. Walker, 2014 ONSC 3170](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc3170/2014onsc3170.html) at paras. 50, 65. [61] Settlement privilege emerged from the “without prejudice” rule, which is derived from the long-held understanding that parties will be more likely to settle a dispute if they have confidence from the outset that their negotiations will not be disclosed.

The purpose of the privilege is to encourage parties to speak frankly and openly in an effort to resolve disputes.

The privilege belongs to all parties to the communication, whether they made or received the communications.

No single party to the communication can unilaterally waive the privilege.

Settlement privilege goes to the heart of our dispute resolution system and contributes to the effective administration of justice: *Sable*, at paras. 10-12.

As the Court of Appeal wrote in [Hollinger Inc. (Re), 2011 ONCA 579](https://www.canlii.org/en/on/onca/doc/2011/2011onca579/2011onca579.html) at para. 20, settlement privilege is a “social value of superordinate importance”. [62] Settlement privilege not only protects the party receiving the privileged communication from using it against the sender, the doctrine also prohibits disclosure of privileged communications to third parties.

In *Sable*, at para. 16, Abella J. quoted with approval the following passage from the decision of McEachern C.J.B.C. in [Middlekamp v. Fraser Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (B.C.C.A.)](https://www.canlii.org/en/bc/bcca/doc/1992/1992canlii4039/1992canlii4039.html), at para. 20: In my judgment this privilege protects documents and communications created for such purposes both from production to other parties to the negotiations and to strangers, and extends as well to admissibility, and whether or not a settlement is reached.

This is because, as I have said, a party communicating a proposal related to settlement, or responding to one, usually has no control over what the other side may do with such documents.

Without such protection, the public interest in encouraging settlements will not be served. [Emphasis added by Abella J.] If a communication is protected by settlement privilege, the protection is against disclosure of the communication, including to strangers, and evidence of the communication is inadmissible. [63] Communications are protected from disclosure by settlement privilege if: a.

There is a litigious dispute; b.

The communications were made with the express or implied intention that they would not be disclosed; and c.

The purpose of the communications is to attempt to effect a settlement: *Re Hollinger*, at para. 16. [64] Stanley submits that these requirements have been satisfied. [65] With respect to the first requirement, Singh’s appeal of the result of the nomination meeting is a litigious dispute that was in existence at the time of the Meeting.

The Meeting was convened after Singh initiated his appeal, at the request of Singh’s supporters.

There was, therefore, a litigious dispute in existence between Singh and the PC Party at the time of the Meeting with respect to Singh’s attempt to seek the PC Party’s nomination for the riding of Hamilton West. [66] With respect to the second requirement, the communications in question must have been made with the express or implied intention that they not be disclosed by the parties.

Confidentiality is central to the settlement privilege because it “wraps a protective veil around the efforts parties make to settle their disputes by ensuring that all communications made in the course of negotiations are inadmissible”: *Sable*, at para. 2. [67] Stanley relies upon the affidavits of Soliman, Sidhu, Bal, and Sandhu who each gave evidence that everything said at the Meeting was confidential, and that nothing would be or could be disclosed to anyone outside the Meeting.

Each of these persons gave evidence that, at the start of the Meeting, Soliman said that the Meeting was a “without prejudice” meeting, and that everyone would be speaking “off the record”.

Stanley also relies on Chatha’s evidence.

When Chatha was examined as a witness, he recalled that the meeting was a “family meeting with brotherly atmosphere”.

Chatha’s evidence is that other things may have been said about the meeting being without prejudice and confidential, but he does not recall these words.

Chatha agreed, however, that what was said in the meeting was supposed to stay in the meeting.

Stanley submits that these five participants all agreed that the Meeting was to be confidential. [68] Singh agreed that when he arrived that the Meeting Soliman explicitly said that this was to be a private meeting.

He agreed that during the Meeting Soliman said that it was a “family meeting”, like “among brothers”.

Singh did not agree, however, that he understood that these words meant that the Meeting was confidential.

Singh did not say to the participants at the Meeting that, in his mind, the Meeting was not confidential.

His evidence on cross-examination is that he did not feel that he needed to say so. [69] Although Singh would not agree that his subjective understanding was that the communications at the Meeting were to be kept confidential and not disclosed, the evidence is overwhelming that this was the case.

All of the participants, except Singh, accepted that this was so, even those who supported Singh’s candidacy.

The words that Singh acknowledges were said at the Meeting (that it was a “private meeting”, a “family meeting”, like “among brothers”) expressly or impliedly convey that the communications at the Meeting would not be disclosed.

I am satisfied that the second requirement has been met. [70] With respect to the third requirement for settlement privilege, that the purpose of the communications at the Meeting was to attempt to effect a settlement, the positions of Singh and Stanley diverge markedly. [71] Singh submits that a critical hallmark of a settlement communication is that it contains at least a hint of compromise of the litigious dispute, and that there was no hint of compromise by Soliman in the discussions at the Meeting because there were no offers made by Soliman and no attempt at compromise of Singh’s appeal of the result of the May 7, 2017 nomination meeting.

Singh submits that, for his part, he was not intent on compromising either.

The issue that mattered to Singh was his nomination, which he was not going to get.

Singh submits that, absent a hint of compromise with specific reference to the litigious dispute itself (his appeal of the outcome of the nomination meeting), the communications made during the Meeting are not protected by settlement privilege because the third requirement is not satisfied. [72] Stanley disputes that in order to satisfy the third requirement for settlement privilege the party asserting the privilege must show that the communications involved a “hint of compromise” of the litigious dispute.

Stanley submits that there is no free-standing “hint of compromise” requirement, and that what is required is that the purpose of the communications in question must be “to attempt to effect a settlement”.

Stanley accepts that an unconditional assertion of rights without any connection to the possibility of settlement or negotiation does not fall within the scope of settlement privilege.

Stanley submits, in this case, even Singh acknowledges that the Meeting involved a frank and open discussion about the dispute in relation to Singh’s appeal and the vote at the nomination meeting and how it could be resolved without litigation.

Stanley submits that the evidence is clear that the communications at the Meeting were an attempt at resolution of this dispute and, therefore, the third requirement is satisfied. [73] Singh relies on the decision of the Alberta Court of Appeal in [Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10](https://www.canlii.org/en/ab/abca/doc/2013/2013abca10/2013abca10.html), [2013] A.J. No. 10 (C.A.).

In *Bellatrix*, the Alberta Court of Appeal considered whether written correspondence that had been marked “without prejudice” and a subsequent meeting (the minutes of which referenced that the meeting was “without prejudice” in accordance with the correspondence that was labelled “without prejudice”) were covered by settlement privilege.

The Alberta Court of Appeal wrote, at paras. 24-25: 24.

Courts appear to have accepted that the types of communications covered by the settlement privilege require at least a hint of compromise or negotiation: [citation omitted].

However, an unconditional assertion of rights without any connection to the possibility of settlement or negotiation do not fall within the scope of the rule: [citations omitted].

Communications of this type do not offer any potential for compromise, which is the interest the privilege is intended to protect. 25.

The notation “without prejudice” is not conclusive in establishing privilege.

If the contents of a communication are truly in furtherance of settlement, and therefore privileged, it makes no difference whether the communication is marked “without prejudice” or not.

A communication that is not in substance privileged does not become so just because one party places “without prejudice” on it.

Likewise, the absence of the words “without prejudice” means nothing if the communications are truly privileged. [74] The court in *Bellatrix* concluded that the correspondence did not fall within the scope of settlement privilege because these written communications were simply statements of one party’s position and provided no hint of compromise.

The court also held that one of the parties lacked the supporting data that was needed for it to assess its position and, when the communications were made, this party could not have properly assessed its position and discussed a resolution.

The court held, however, that the meeting that followed the written correspondence would be subject to the settlement privilege because, by that time, the parties appeared intent on discovering the strengths and weaknesses of each other’s claim with a view to resolving the issue and avoiding litigation. [75] Singh also relies on the decision of the Federal Court in [Boogaard v. Canada (Attorney General), 2014 FC 150](https://www.canlii.org/en/ca/fct/doc/2014/2014fc150/2014fc150.html), aff’d [2015 FCA 150](https://www.canlii.org/en/ca/fca/doc/2015/2015fca150/2015fca150.html), which cited *Bellatrix*, where a letter marked “without prejudice” was held not to be covered by settlement privilege because it was tantamount to an outright refusal.

In *Boogaard*, the communication was a letter, and the court held that in writing the letter the author was exercising a public power and doing it for reasons set out in the letter.

The court concluded that the author should not be able to shield a letter from review merely by writing “without prejudice” on it. [76] Singh also relies upon the decision of Penny J. in [East Guardian v. Mazur, 2014 ONSC 6403](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc6403/2014onsc6403.html).

In that case, loans were made to two corporations and personally guaranteed by Mazur.

The lender alleged that the loan proceeds were used for prohibited purposes.

The lender sent a letter demanding that information be provided.

In response, Mazur sent an email explaining how the loan proceeds had been used.

Mazur alleged that this written report constituted a settlement proposal which was inadmissible.

A telephone conference took place later on the same day that was recorded, and Mazur took the position that the telephone conference involved further settlement negotiations and were also inadmissible. [77] Penny J. held that (i) there was no litigious dispute when the communications took place, (ii) there was no expectation that information disclosed would only be used for the purposes of settlement negotiations, and (iii) the communications did not involve settlement discussions of any kind.

In his reasons, Penny J. wrote, citing *Bellatrix*, that “[a] critical hallmark of a settlement communication is that it involves at least a hint of compromise”.

Penny J. found that the written and verbal communications were “nothing more than a discussion between sophisticated businessman (sic) to clarify the status of the loan and how and when defaults would be remedied”. [78] I regard the purpose and nature of the communications in the Meeting to be different in material respects than the purpose and nature of the communications in the *Bellatrix*, *Boogaard* or *Mazur* cases that were held not to be subject to settlement privilege.

In those cases, the written communications were not made in circumstances where the parties had accepted or understood that they were made for the purpose of attempting to resolve the dispute, and the use of the words “without prejudice” on written communications that were not in furtherance of settlement did not transform a communication that is not subject to settlement privilege into one to which settlement privilege applies.

The telephone conference in *Mazur* was not held on the basis that the discussions were for the purpose of attempting to effect a resolution of the dispute and, for this reason, in addition to his findings that there was no litigious dispute and there was no expectation that the information would only be used for the purpose of settlement, Penny J. concluded that the communications in the telephone conference were not covered by settlement privilege. [79] In my view, where the communications in question are made in a meeting the purpose of which is to attempt to resolve a dispute, as opposed to through a written communication that may or may not be marked “without prejudice”, different considerations apply to the third requirement for settlement privilege.

This is because a participant at such a meeting cannot be expected to calibrate the words chosen in each sentence spoken during an open, free-flowing and unscripted conversation to ensure that each sentence meets the three requirements for settlement privilege. [80] The distinction between, on the one hand, a written communication that may be marked “without prejudice” where there may be no “hint of compromise” and, on the other hand, communications made in an unscripted meeting held for the purpose of attempting to resolve a dispute was addressed by the England and Wales Court of Appeal in *Unilever Plc v. The Proctor & Gamble Company*, [2000] 1 W.L.R. 2436.

In that case, the court addressed whether communications at a meeting held between representatives of Proctor & Gamble and Unilever were “without prejudice” communications that were inadmissible in evidence.

There was no dispute that the parties had agreed that the discussions were conducted on a without prejudice basis.

It was asserted that at the meeting Proctor & Gamble threatened Unilever with proceedings for patent infringement, and the question for the court was whether evidence of the communication of the threat at the meeting was admissible to prove that the threat was made. [81] In *Unilever*, the court wrote: 21.

Without in any way underestimating the need for proper analysis of the [without prejudice] rule, I have no doubt that busy practitioners are acting prudently in making the general working assumption that the rule, if not “sacred” [citation omitted], has a wide and compelling effect.

That is particularly true where the ‘without prejudice’ communications in question consist not of letters or other written documents but of wide-ranging unscripted discussions during a meeting which may have lasted several hours. 22.

At a meeting of that sort the discussions between the parties’ representatives may contain a mixture of admissions and half-admissions against a party’s interest, more or less confident assertions of a party’s case, offers, counter-offers, and statements (which might be characterized as threats, or as thinking aloud) about future plans and possibilities.

As Simon Brown LJ put it in the course of argument, a threat of infringement proceedings may be deeply embedded in negotiations for a compromise solution.

Partial disclosure of the minutes of such a meeting may be, as Leggatt LJ put it in *Muller*, a concept as implausible as the curate’s egg (which was good in parts). 35.

In those circumstances I consider that this court should, in determining this appeal, give effect to the principles stated in the modern cases, especially *Cutts v Head*, *Rush & Tomkins* and *Muller*.

Whatever difficulties there are in a complete reconciliation of those cases, they make clear that the without prejudice rule is founded partly in public policy and partly in the agreement of the parties.

They show that the protection of admissions against interest is the most important practical effect of the rule.

To dissect out identifiable admissions and withhold protection from the rest of without prejudice communications (except for a special reason) would not only create huge practical difficulties but would be contrary to the underlying objective of giving protection to the parties (in the words of Lord Griffiths in *Rush & Thompkins* at p. 1300) “to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts.” 36.

Parties cannot speak freely at a without prejudice meeting if they must constantly monitor every sentence, with lawyers or patent agents sitting at their shoulders as minders. [82] The Alberta Court of Appeal in *Bellatrix*, at para. 27, endorsed this reasoning in *Unilever* and wrote that “[t]he rule is also intended to allow the parties to freely and openly discuss the potential for settlement, and while doing so, the parties should not have to carefully monitor the content of their discussions”. [83] Based upon these authorities, in my view, where a meeting is held and the first two requirements for settlement privilege have been satisfied, in order to decide whether the third requirement is satisfied a court must determine whether the purpose of the meeting was to attempt to effect a settlement of the litigious dispute.

The purpose of the meeting is important because, when the purpose of the meeting is to attempt to effect a settlement, the participants will know that they can speak freely and that they do not have to monitor every sentence spoken during what may be a long, free-flowing, and unscripted meeting.

Things may be said during the course of a meeting that influence the negotiating strategy of one side or the other and, as a result, a participant may change or withhold what he or she planned to say towards resolution when the meeting began.

The discussions at such a meeting may take an unexpected course, and may lead the parties further from resolution than when the meeting began.

A settlement may be negotiated even where a party entering the meeting is unwilling to compromise his or her position on the particular litigious dispute itself.

Where, for example, the parties to a dispute have, or may in the future have, an ongoing relationship, there may be a basis for settlement of the dispute involving compromises in relation to other or future dealings, where the settlement under consideration would not involve any compromise of the litigious dispute itself. [84] In my view, the communications at a meeting that is held for the purpose of attempting to settle a dispute, when considered after the fact, do not need to reveal a willingness by either side to compromise the litigious dispute in order for settlement privilege to be engaged.

Even if the dispute is not resolved, and even if no offer of settlement is made during the meeting by one side, or by either side, if the first two requirements for settlement privilege are satisfied, then the communications at the meeting will be protected by settlement privilege if the purpose of the meeting was to attempt to effect a settlement of the dispute (unless an exception applies). [85] For these reasons, I do not accept Singh’s submission that the third requirement for settlement privilege is not met because, according to Singh, the Transcript of the Meeting does not reveal a “hint of compromise” by Soliman or Singh with respect to Singh’s appeal. [86] Therefore, it is necessary for me to determine whether the purpose of the Meeting was to attempt to effect a settlement of the dispute involving Singh’s appeal. [87] In this case, the evidence of Soliman, Sandhu, Bal and Sidhu is that Soliman expressly stated at the outset of the Meeting that it was being held on a without prejudice and confidential basis.

Soliman’s evidence is that Singh said “that’s fine”.

Soliman’s evidence is that he attended the Meeting on behalf of the PC Party with a mandate to try to settle the dispute.

Sandhu gave evidence that, when Singh first appeared at the meeting with his lawyer and was told that his lawyer was not welcome, Singh said that if his lawyer could not attend the Meeting, “it would have to be ‘without prejudice’”.

Sandhu’s evidence is that Soliman said the Meeting was without prejudice.

Bal’s evidence is that the description of events set out in Sandhu’s affidavit is consistent with his recollections. [88] Singh’s evidence is that when he was told by Soliman that his lawyer could not attend, he asked “if that decision would change if we made the meeting ‘without prejudice’”, and that “Walied said no”.

Singh, in his affidavit, concludes “[t]hus, the meeting was not made into a without prejudice meeting”.

In my view, Singh’s evidence does not support this conclusion.

Singh is a litigation lawyer.

He knows the meaning of the term “without prejudice”.

He would not have used this term to describe the Meeting he was about to enter unless he intended to confirm that the purpose of the Meeting would be to attempt to resolve the dispute involving his appeal.

The purpose of the Meeting would not have changed only because Singh’s lawyer was not allowed to attend.

The fact that, following Singh’s use of this term, Soliman did not agree that Singh’s lawyer could remain does not lead to the conclusion advanced by Singh, that “the meeting was not made into a without prejudice meeting”. [89] Singh also relies upon a passage from the Transcript at which Soliman uses the term without prejudice: WS: Even you say the words “without prejudice” makes me feel like I have to – like, it’s not – U/I SPEAKER: Yes.

WS: My assumption is we’re just speaking as family.

BS: Yes, we have to.

VS: No, no, that’s fine.

BS: Vikram, everything is going to be like brothers.

VS: That’s fine.

That’s fair enough. (Overtalking).

Singh submits that this portion of the Transcript suggests that the Meeting was not “without prejudice”, but that the Meeting was on the basis that the attendees were speaking “as family” or “like brothers”.

Singh’s evidence is that he did not understand that talking “like brothers” meant somehow without prejudice or confidential.

He denies that he agreed that the meeting was to be on a without prejudice basis.

Singh describes the meeting as a political meeting where there was no attempt at compromise of his appeal. [90] This portion of the Transcript near the beginning of the Meeting is important because the understandings of the parties of the purpose of the Meeting would have been informed, at least in part, by what was said at this stage of the Meeting.

At this stage of the Meeting, just before Soliman used the term “without prejudice”, the Transcript records that there is a part of the Recording that is “inaudible”.

The fact that at this crucial stage of the Meeting the Recording is inaudible and the Transcript is incomplete shows that I cannot rely upon the portion of the Transcript that appears immediately after the inaudible portion, upon which Singh relies, as an accurate record that captures what was said at the beginning of the Meeting.

Soliman’s evidence is that he believes that at the stage of the Meeting where the Transcript records that the Recording is “inaudible”, he again stated that the Meeting was without prejudice and confidential. [91] In my view, the text messages that were exchanged by Singh and other attendees of the Meeting following the Meeting, more than the Transcript, shed light on the intentions of Singh and Soliman with respect to the Meeting.

After the Meeting, Singh had dinner with the other attendees (except Soliman).

He told them that he had secretly recorded the Meeting.

Sandhu was shocked by Singh’s revelation, and all those at the dinner told Singh that what he had done was wrong.

Bal told Singh that “it is against our principles to secretly record conversations, especially ones intended and agreed to be confidential”. [92] After the dinner, beginning at 9:29 on May 24, 2017, Singh and the other participants exchanged a series of group text messages.

At 10:02 to 10:05, Sandhu texted: I think we should think this through very carefully, amongst us in this chat.

My belief is whats the end goal here, what are we trying to achieve by escalating this?

We have to be clear on that, and the impact htat (sic) will have outside of us as individuals.

We have to be cool and collected.

Vikram, bringing that lawyer in today as a surprise could have made events very different than they were.

I am actually surprised that Walied continued on the meeting, if it was me i would have called it off right then and there.

That is not how we have achieved things in the past.

I am even more surprised at how candid Walied was to the realities of HWAD nomination. he didn’t have to be that honest with us, but he was.

We must respect the without prejudice and off the record nature of that conversation.

He is not an enemy, nor is he stupid.

We have to be realistic about what our avenues are Singh replied at 10:07: I agree [93] At the hearing of the motions, I granted leave to Singh pursuant to r. 39.02(2) to deliver a further affidavit to address his reply to the texts from Sandhu.

These texts were produced in response to an undertaking requested and given during Sandhu’s cross-examination.

In Singh’s further affidavit he said “[i]t was this last statement, ‘[w]e have to be realistic about what our avenues are” that I responded ‘I agree’ to.

I did not dissect the rest of the message to indicate exactly what other messages from Mr. Sandhu that I agreed with or disagreed with.

In fact, I agree with much of what he says in the preceding text message”. [94] On the evening of June 8, 2017, Singh and his supports who had attended the Meeting had another group chat using text messages.

At 7:16 p.m., Bal wrote: Jaspal Bal WSO: Without sounding as the lone dissenter, I’m continuing to act as the old man who sees things that you guys are not seeing.

As I was driving from Oakville, I called Bobby and asked him about the usage of “without prejudice” few times by Walied at the very beginning of our discussion and it’s impact on legal standing of recording.

I would like to know if we can use the recording done without the consent/knowledge of Walied and revelations made by him for legal action?

Our move MUST be cool/calculated with a sure shot influencing real change Bobby Sidhu: I talked to Vikram. [Singh:] Please review paragraph 1 In his reply text, Singh sent a copy of what appears to be a passage from a legal text about whether secretly recording a telephone conversation is a criminal offense. [95] It is clear from these exchanges of text messages that when Sandhu wrote that the conversation with Soliman was “without prejudice and off the record”, Singh did not express his disagreement in response.

When Bal wrote that Soliman had used the term “without prejudice” a few times at the Meeting, Singh did not challenge this account.

Singh was considering what, if anything, to do about the communications at the Meeting and, therefore, whether or not the Meeting was confidential and inadmissible in evidence in a legal proceeding because it was held on a without prejudice basis and protected by settlement privilege would have been an important consideration for Singh, a litigation lawyer. [96] In my view, the only reasonable inference that can be drawn from Singh’s responses to the texts from Sandhu and Bal is that he did not disagree that Soliman said at the beginning of the Meeting that it was without prejudice and confidential.

I draw this inference and I also find, based upon my consideration of all of the evidence, that Soliman said at the beginning of the Meeting that it was being held on a without prejudice and confidential basis, that Singh and the other participants expressly or impliedly accepted these terms, and that the Meeting proceeded on these terms. [97] Even if there had been a failure by Soliman to use the term “without prejudice” to establish that the purpose of the Meeting was to discuss possible resolution of the dispute involving Singh’s appeal, this would not be determinative.

A meeting can be held for the purpose of attempting to settle a dispute even if the words “without prejudice” are not used. [98] When he was cross-examined, Singh was asked about the issues that were discussed at the Meeting: 153.

Q. One of the issues discussed at the meeting was how it’s possible to have you get by the current dispute you had with the party, as opposed to having an appeal and a fight about it?

That was one of the issues discussed.

How can we and you, the party, get by this issue?

How can we get past it?

That was one of the issues discussed in this meeting, correct?

A. Mr. Soliman made comments with respect to his observations or knowledge that he had.

As we sit right now I don’t know if I can very accurately recall exactly how we were going to get past this. 154.

Q. And I think that’s a very fair comment.

My point isn’t that you knew exactly how to get past it but one of the themes, one of the issues discussed at the meeting was trying to get past it.

How you could get past it.

My only point, sir, is that - A. Perhaps part of the meeting might be characterized how do we address the issue?

How do we address certain issues with respect to this nomination meeting? 155.

Q. Fair enough.

A. That’s how I would put it. 156.

Q. How do we address these issues?

And I’ll just add a little bit on, to the satisfaction of you and the party.

How do we address them so that you will be satisfied and the party will be satisfied, correct?

A. I think that’s a fair comment. [99] Through this evidence, Singh acknowledged that the discussions at the Meeting were to address the current dispute that he had with the PC Party, and how to do so in a way that he would be satisfied and the PC Party would be satisfied.

Such discussions would be protected by settlement privilege, even if Soliman had not used the words “without prejudice” at the beginning of the meeting to establish that the purpose of the Meeting was to discuss resolution of the dispute involving Singh’s appeal. [100] I conclude that the Meeting was held for the purpose of attempting to settle the dispute involving Singh’s appeal of the decision at the nomination meeting.

The third requirement for settlement privilege is satisfied. [101] The communications at the Meeting, including the Recording and the Transcript, are prima facie covered by settlement privilege. ### d.

Does an exception to settlement privilege apply? [102] In *Sable*, Abella J. wrote at paras. 12 and 19: As with other class privileges, while there is a prima facie presumption of inadmissibility, exceptions will be found “when the justice of the case requires it” [citation omitted].

There are, inevitably, exceptions to the privilege.

To come within those exceptions, a defendant must show that, on balance, “a competing public interest outweighs the public interest in encouraging settlement” [citations omitted].

These countervailing interests have been found to include allegations of misrepresentation, fraud or undue influence [citations omitted], and preventing a plaintiff from being overcompensated [citation omitted].

Singh, relying upon these passages in *Sable*, submits that even if the communications at the Meeting are prima facie protected from disclosure and inadmissible because of settlement privilege, the justice of this case requires an exception to the privilege because a competing public interest outweighs the public interest in encouraging settlement. [103] Singh submits that an exception applies in this case because of the need to protect the integrity of the judicial process and the court’s truth seeking function.

Singh submits that there is an important public dimension to this case because his allegations go to the foundation of the democratic process and public confidence in that process.

Singh submits that the competing public interest in ensuring that democratic processes are fair and transparent and not tainted by fraud is sufficiently compelling, on its own, to outweigh the public interest in promoting settlement of disputes.

Singh submits that the public importance of the matters at issue combined with the need to ensure the correct adjudication of this dispute warrant an exception to any settlement privilege that may be found to exist. [104] Stanley submits that none of the generally accepted exceptions to settlement privilege apply and that, while a court can, in exceptional circumstances, pierce settlement privilege if there is an overriding, competing public interest, such competing interests relate to the manner in which the settlement was procured or to prevent a party from being overcompensated in a completed settlement.

Stanley submits that the competing public interest which can outweigh the public interest in promoting settlement of disputes does not relate to the underlying allegations made against a party protected by settlement privilege. [105] In support of his submissions, Singh relies upon [Brown v. Brown, 2013 NBQB 269](https://www.canlii.org/en/nb/nbqb/doc/2013/2013nbqb269/2013nbqb269.html).

In *Brown*, the husband in matrimonial proceedings wrote a letter with the ostensible purpose of re-negotiating the terms of support under a separation agreement in which he made statements that conflicted with statements in an affidavit that he subsequently swore.

The court held that the statements made in the letter were admissible as an exception to settlement privilege because the privilege cannot be used as a means to deceive the courts as to the facts and, therefore, the justice of the case requires the exception: *Brown*, at para. 36. [106] Singh also relies on [Berry v. Cypost Corp., 2003 BCSC 1827](https://www.canlii.org/en/bc/bcsc/doc/2003/2003bcsc1827/2003bcsc1827.html) at paras. 26-27.

In *Berry*, the plaintiff claimed that a defendant had admitted during the course of without prejudice settlement discussions that he had sworn a false affidavit.

The court held that settlement privilege did not extend to this statement. [107] I do not regard the decisions in *Brown* or in *Berry* as supporting an exception to settlement privilege in this case.

These cases both involved apparent perjury, where the party claiming settlement privilege had given testimony that directly contradicted admissions made in settlement communications.

That is not the case here.

Singh submits that if evidence were to be delivered by the respondents to this application that conflicts with communications Soliman made in the Meeting, Singh could then be in a position to make stronger submissions that an exception applies to settlement privilege.

I do not accept that this is a material consideration for me on these motions.

I agree with the response given by Brown J. (as he then was) in *Hallman* when the same argument was made, and conclude that it is not for me to speculate on these motions what evidence may be tendered in the future on the judicial review application: *Hallman*, at para. 22. [108] Stanley submits that there is no standalone “truth seeking” exception to settlement privilege, and that allowing such an exception would conflict with the policy objectives of settlement privilege identified in *Sable* at para. 13 that parties should be encouraged to settle their disputes and should not be discouraged by the knowledge that anything that is said in the course of settlement negotiations may be used to their prejudice in the proceedings. [109] Stanley relies upon the decision in [The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2013 ONSC 6297](https://www.canlii.org/en/on/onsc/doc/2013/2013onsc6297/2013onsc6297.html).

In that case, the plaintiffs sought production of settlement documents involving SNC-Lavalin and the World Bank.

In support of their claims, the plaintiffs sought to prove through these documents that SNC-Lavalin had engaged in bribery.

They relied upon *Sable*, at para. 12, in support of their submission that the “justice of the case” required disclosure of communications that were prima facie protected by settlement privilege.

Perell J. rejected this submission and wrote at paras. 84, 85 and 87: That the settlement documents may contain the best evidence that SNC engaged in bribery and that it will be difficult or impossible to secure the evidence from the authorities in Bangladesh and that the World Bank has leverage that the Plaintiffs do not have are not public policy reasons for abrogating the settlement privilege in the interests of justice.

Once again, to repeat the words of Justice Abella, the settlement privilege is designed to provide a protective veil around the efforts parties make to settle their disputes by ensuring that communications made in the course of these negotiations are inadmissible. […] Upon examination, the public policy exception that the Plaintiffs seek is not an exception to the settlement privilege but is an overheated submission that the settlement privilege should never apply because it will never be in the interest of justice since it interferes with a litigant’s ability to prove a difficult and perhaps important case.

This policy argument for an exception to settlement privilege simply does not work, and I reject it. [110] Singh submits that the *SNC-Lavalin* case is distinguishable because (i) it did not involve a public element, as this case does, (ii) the settlement was with the World Bank, a third party, whereas here there is no third party asserting the protection afforded by settlement privilege, (iii) the only other interest at stake was the promotion of settlements, whereas here Singh relies upon the public interest in fair and transparent elections, and (iv) the plaintiffs in that case were on a fishing expedition because they did not know what was in the settlement documents of which they were seeking production. [111] In my view, the points of distinction raised by Singh do not detract from the application to this case of the principles expressed in *SNC-Lavalin*.

With respect to the first and third points (that both relate to the public element of this case), the fact that the application by Singh and his campaign involves allegations of voter fraud at the nomination meeting, a matter of public importance, as opposed to financial fraud of the type that that was alleged in *SNC-Lavalin*, is not, in my view, a sufficient reason not to give effect to settlement privilege.

Simply because a given case involves a matter of public importance does not mean that there should be a free-standing exception to settlement privilege.

If that were the case, a government that is a party to litigation involving a matter of public importance would not engage in settlement discussions for fear that any statements made as part of an open and frank negotiation could be used against it in the litigation.

Such a broad, free-standing public policy exception would, in my view, have a chilling effect on settlement negotiations in disputes involving matters of public importance and would run roughshod over the public policy reasons expressed in *Sable* for encouraging settlements.

I do not regard the second and fourth points of distinction raised by Singh to be material ones. [112] The court’s reasoning in *SNC-Lavalin* for refusing to give effect to the requested exception to settlement privilege in order to allow a party to more easily prove serious allegations, in that case, allegations of bribery, applies directly to this case.

Here, Singh seeks to pierce the veil of confidentiality afforded by settlement privilege by introducing into evidence communications made during the course of the Meeting.

I do not agree that he is able to do so for the same reasons as were given by Perell J. in *SNC-Lavalin* for rejecting an exception to the settlement privilege in that case. [113] For these reasons, I do not accept Singh’s submission that the public importance of the matters at issue combined with the need to ensure the correct adjudication of this dispute warrant an exception to the protection of settlement privilege that is prima facie afforded to the communications at the Meeting.

Singh has not shown that, in this case, there is a competing public interest that outweighs the public interest in encouraging settlement. ### e.

Did Singh commit a breach of confidence by including the Transcript and referring to its contents in his application record, and by sharing the Transcript and its contents with others?

If so, does an exception to breach of confidence apply? [114] Stanley submits that, in addition to being privileged, the information Singh seeks to disclose was communicated in the strictest confidence and its disclosure to any third parties is a breach of that confidence.

Stanley relies upon the decision of the Supreme Court of Canada in [Slavutych v. Baker](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5490/index.do), 1975 CarswellAlta 39 (S.C.C.) at para. 21 in support of his submission that an obligation to protect confidential communications applies in both a commercial and a personal context. [115] Stanley submits that Singh committed a breach of confidence by including the Transcript and referring to its contents in his Application Record, and by sharing the Transcript and its contents with others.

Stanley submits that a duty of confidence is breached where (a) the communication conveyed was confidential, (b) the information was communicated in confidence, and (c) the information was misused by the party to whom it was communicated: [Lac Minerals Ltd. v. International Corona Resources Ltd.](https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/500/index.do), [1989] 2 S.C.R. 574 at para. 129. [116] Stanley submits that in cases involving breach of confidence, the court enjoys a broad jurisdiction to fashion relief that is responsive to the breach of confidence in a given case. [117] Singh denies that Stanley is entitled to a remedy for breach of confidence.

Singh submits that there is no court proceeding in which he is a defendant and no court proceeding in which Stanley or the other respondents seek a permanent injunction.

Singh submits that the tort of breach of confidence has not been applied in circumstances similar to this case, and that his reliance on the Transcript as evidence in court proceedings does not amount to misuse of the information.

Singh submits that a cause of action for breach of confidence is not complete without proof of misuse of the information by the party to whom it was communicated to the harm or detriment of the person asserting a breach of confidence, and that Stanley has not tendered evidence of misuse and harm. [118] In my view, Stanley is not entitled to the permanent injunctive relief that he seeks for breach of confidence on the motions before me.

No proceeding has been commenced by Stanley or the PC Party claiming remedies for a cause of action founded in breach of confidence.

There are no pleadings, and no motion for summary judgment is before me.

Absent a proceeding in which Stanley and the PC Party advance a claim for the permanent injunctive relief and other related relief founded on a cause of action for breach of confidence, I am not willing to grant such relief on the motions before me.

In any case, the remedy that I grant to preserve and protect the settlement privilege in the communications at the Meeting will protect the confidentiality of these communications. [119] I do not find it necessary to address whether the law in Ontario recognizes an exception to breach of confidence where warranted in the public interest. ### f.

What is the appropriate remedy to preserve and protect the settlement privilege? [120] I have concluded that the communications at the Meeting are subject to settlement privilege and that Singh has not shown that any exception applies.

This means (i) the communications at the Meeting and any record of such communications, including the Transcript and the Recording, are protected from disclosure to others, including representatives of the media who received a copy of Singh’s application record (which included the Transcript and references in Singh’s affidavit to communications at the Meeting), and (ii) communications at the Meeting are inadmissible in evidence on this application. [121] Stanley and the PC Party are entitled to relief that will preserve and protect the privilege afforded by law to the communications at the Meeting.

They are entitled to an order expunging the Transcript from Singh’s application record and striking out and expunging paragraphs 32-35 from Singh’s affidavit sworn June 12, 2017.

They are entitled to an order prohibiting (i) the applicants, (ii) any person associated with the applicants who is in possession of the Transcript or who has knowledge of the communications that took place at the Meeting, and (iii) any person who obtained a copy of the Transcript or who obtained knowledge of the communications that took place at the Meeting from the applicants or any person associated with the applicants, from disclosing or disseminating the Transcript or the communications that took place at the Meeting to any other person. [122] Stanley also requests an order requiring the applicants and all others with knowledge of the order to immediately destroy all copies of the Transcript and the Recording, however stored.

Given that the communications at the meeting are protected from disclosure by settlement privilege, disclosure by Singh of the Transcript to other persons was in breach of his obligations.

For this reason, it is appropriate that any person with knowledge of the order who received a copy of the Transcript (or the Recording) be ordered to immediately return to Singh all hard copies of the Transcript or the Recording, and to permanently delete all electronic copies of the Transcript or the Recording, however stored. [123] Even though Singh secretly recorded the Meeting, this was not done unlawfully.

Singh is, therefore, not unlawfully in possession of the Transcript and the Recording.

In my view, I would be exceeding the proper exercise of my jurisdiction by making an order compelling Singh to destroy all copies of the Transcript and the Recording. [124] The motion materials on the motions before me include references to the communications at the Meeting and the Transcript.

These references were needed for me to adjudicate on the motions.

I have decided that the communications at the Meeting are subject to settlement privilege and protected from disclosure.

In order to preserve the confidentiality of the communications at the Meeting, I order that the court file for these motions be treated as confidential, sealed and not form part of the public record pursuant to [s. 137(2) of the Courts of Justice Act](https://www.ontario.ca/laws/statute/90c43). ## Disposition [125] I therefore make an order: a.

Expunging Exhibit “I” to the affidavit of Vikram Singh sworn June 12, 2017 from the Application Record in this proceeding; b.

Striking and expunging paragraphs 32-35 from the affidavit of Vikram Singh sworn June 12, 2017; and c.

Prohibiting i. the Applicants; ii. any person associated with the Applicants who is in possession of the Transcript or who has knowledge of the communications that took place at the Meeting; or iii. any person who obtained a copy of the Transcript or who obtained knowledge of the communications that took place at the Meeting from the Applicants or any person associated with the Applicants; from disclosing or disseminating the Transcript or the communications that took place at the Meeting to any other person. d.

Requiring persons with knowledge of this order, other than Singh or the Respondents, who received a copy of the Transcript or the Recording, to immediately return to Singh all hard copies of the Transcript and the Recording, and to permanently delete all electronic copies of the Transcript or Recording, however stored. e.

That the court file for these motions be treated as confidential, sealed and that it shall not form part of the public record. [126] If the parties are unable to resolve costs, Stanley may make written submissions within twenty days not to exceed 15 pages (excluding Costs Outline).

Singh may make responding submissions within fifteen days thereafter (also not to exceed 15 pages).

If so advised, Stanley may make reply submissions within ten days thereafter (not to exceed 5 pages).

Cavanagh, J. Released: July 6, 2017