“Communications made in an attempt to effect a compromise or resolve issues are subject to litigation privilege. This is a long-standing principle and is reflected in the words of Cameron C.J. of the Ontario Court of Appeal in Pirie v. Wyld (1886), 11 O.R. 422 (C.A.), at p. 427:
… letters written or communications made without prejudice, or offers made for the sake of buying peace, or to effect a compromise, are inadmissible in evidence. It seemingly being considered against public policy as having a tendency to promote litigation, and to prevent amicable settlements.
As the Divisional Court stated at para. 11 of Inter-Leasing, Inc. v. Ontario (Finance), 2009 CanLII 63595 (ON SCDC):
A party seeking to introduce in evidence material subject to settlement privilege must show that the communication is relevant and the disclosure is necessary, either to show the agreement of the parties or to address a compelling or overriding interest of justice. (Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4 (CanLII), [2005] B.C.J. No. 5 (B.C.C.A.) at para 20).
This statement was submitted to and accepted by Fragomeni J. at paras. 16 and 23 of Rodriguez v. Guignard 2012 ONSC 2444 (CanLII), 20 R.F.L. (7th) 146.
At para. 17, Fragomeni J. went on to quote Alan W. Bryant, Sidney N. Lederman, & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada Inc., 2009), at p. 1030:
s. 14.313 It has long been recognized as a policy interest worth fostering that parties be encouraged to resolve their private disputes without recourse to litigation, or, if an action has been commenced, encouraged to effect a compromise without resort to trial.
s. 14.315 In furthering these objectives, the courts have protected from disclosure communications, whether written or oral, made with a view to reconciliation or settlement. In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming.
As the court said in William Allan Real Estate Co. v. Robichaud (1987), 17 C.P.C. (2d) 138 (Ont. H.C.), at p. 141, “What sensible man would attempt settlement if it could be used against him at trial?”
The conflict between the protection of settlement communications by litigation privilege and the production of all evidence relevant to the best interest of a child was discussed in Hutton v. Hutton, [1990] O.J. No. 1081 (Dist. Ct.), where Taliano D.C.J. stated:
I am not unmindful of the fact that the court should not lightly displace a privilege that has been entrenched in the law for so long, but in this case, it is necessary to give pre-eminence to a policy objective that is superior to it. Although both policy objectives are important and deserve to be fostered, the policy interest that promotes and protects the best interests of the child is paramount and the privilege attached to settlement discussions must therefore yield to it…
This can be considered alongside Georgareas v. Georgareas, 2006 CanLII 44274 (ON SC), where Herman J. made the following observation at para. 7:
However, while the substance of the proposals is privileged, evidence that attempts have been made to resolve access and those attempts have not been successful is, in my opinion, permitted evidence. The ability of the parents to come to agreements regarding their children, including agreements regarding access, is relevant to a determination of custody and access and what is in the children’s best interests.
The substance of the discussions should therefore be deleted from the affidavit and exhibits but evidence in support of the party’s allegation that there is a pattern of frustrating access I otherwise permitted.”