When a party has filed separate Court Actions for multiple incidents causing indivisible injuries and one of these Actions has settled, the records from the settled Action are generally protected by settlement privilege and not producible. However, if the injuries are intertwined or there is a potential for double recovery, another party may be granted access to privileged records from the settled Action to rely upon in the remaining active litigation.
An individual involved in two motor vehicle collisions, 2018 and 2020, incurred significant overlapping injuries, filed separate Court Actions, and had settled the Action relating to the second collision. The defendant to the Action relating to the first collision sought to compel production of settlement records from the second action, however, the Plaintiff refused relying upon the doctrine of settlement privilege.
What the Court Said
The Court granted the application and ordered the settlement records to be produced, including because the injuries claimed in each of the Actions were indivisible and there was a risk of potential double recovery. However, the Court held that the settlement privileged records ought only to be exchanged between the parties and not the Court until after a finding at trial regarding whether or not the plaintiff's injuries were found to be indivisible from the first settled Action and on the amount of damages to be awarded.
Takeaways
Although settlement privilege is broad, there are recognized exceptions, such as the possibility of double recovery and whether the records are relevant and necessary for the fair and just resolution of the remaining action. Accordingly, in cases where there are multiple tortfeasors, separate incidents, and there are allegations that the incidents each caused similar or overlapping injuries, a party may compel the disclosure of settlement privileged records.
Link to decision: Mo'Allim v Gallant, 2024 ABKB 368
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