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Money Express POS Solutions Inc. made an offer to settle in its
termination letter to Raheel Jiwan, which Jiwan then referred to in
his pleadings in a wrongful dismissal suit. The employer moved to
have references to the letter expunged, on the grounds they were
protected by settlement privilege: Jiwan v Money Express POS
Solutions Inc, 2012 ONSC 909.
Master Short of the Ontario Superior Court gives a useful review
of the case law and the factors that will be considered in cases of
this kind: (1) was the communication from the defendant? (yes, in
this case); (2) was the plaintiff contemplating litigation? (yes,
even though the offer to settle was in the same letter as the
termination; neither came 'out of the blue' from the
employee's perspective); (3) was the defendant offering a real
compromise? (yes); (4) was the communication 'without
prejudice'? (yes, it said so specifically); and (5) was the
genuine purpose of the communication a settlement? (again, yes).
The paragraph in the pleadings was therefore struck.
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