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Evidence - Privilege - Override. Nady v. Al Sadi
In Nady v. Al Sadi (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a Small Claims Court appeal, this brought against a finding that the appellant "had breached the contract that he had with the Respondents to babysit their cat, Mylo, by refusing to return the cat to them at the end of the term."
Here the court considers when a privilege (here, settlement) may be over-ridden:[18] Settlement negotiations are protected by settlement privilege, whether or not a settlement is reached. Settlement discussions are presumed to be inadmissible. See Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 at paras. 12-14, 17 (“Sable”).
[19] There are exceptions to settlement privilege. To come within those exceptions, the reasons for disclosure must outweigh the policy in favour of promoting settlement. It must be shown that, on balance, a competing public interest outweighs the public interest in encouraging settlement. These countervailing interests have been found to include allegations of misrepresentation, fraud or undue influence, and preventing a plaintiff from being overcompensated. See Sable at paras. 19, 30. . Longarini v. Rankin
In Longarini v. Rankin (Ont CA, 2025) the Ontario Court of Appeal dismissed an appellate motion to extend time to commence an appeal, here where the appeal was to be brought against the motion judge striking "the Amended Statement of Claim in its entirety" and denying "leave to amend on the basis that the Claim could not be cured by amendment".
The court applied a 'full and answer and defence' criminal law override to a privilege claim (settlement privilege), here where the court assessed the merits element of a time extension motion:[16] In the alternative, the motion judge also did not misapply the “full answer and defence” exception to settlement privilege. The motion judge properly considered the law when stating that “where evidence may assist the accused in making full answer in defence, this consideration will trump the policy consideration” which founds settlement privilege, and in quoting R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, which says, at para. 24: “[t]o the extent that rules and privileges stand in the way of an innocent person establishing his or her innocence, they must yield to the Charter guarantee of a fair trial.”
[17] Further, in this case, the information contained in the email was possibly useful to the accused persons such that an exception to settlement privilege should be made so that the information could be disclosed to the accused, similarly to R. v. Nestlé Canada Inc., 2015 ONSC 810, 124 O.R. (3d) 498. . Longarini v. Rankin
In Longarini v. Rankin (Ont CA, 2025) the Ontario Court of Appeal dismissed an appellate motion to extend time to commence an appeal, here where the appeal was to be brought against the motion judge striking "the Amended Statement of Claim in its entirety" and denying "leave to amend on the basis that the Claim could not be cured by amendment".
The court applied a public interest override to a settlement privilege claim, here where the court was assessing the merits element of a time extension motion:[15] Second, the motion judge found that settlement privilege would not attach to the email, as the public interest in exposing the impropriety outweighs the public interest in according privilege, and therefore the information was not confidential and not communicated in confidence: see Augier v. Vis, 2011 ONSC 4583 at para. 18. ....
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