PRACTICE |
Judgments and Orders |
Summary Judgment |
Bauer Nike Hockey Inc. v. Tour Hockey
T-1816-01
2003 FCT 451, Tremblay-Lamer J.
17/4/03
11 pp.
Motion for summary judgment based on settlement agreement--On August 15, 2002, solicitors for defendants sent letter to solicitors for plaintiff stating willing to admit infringement, consent to judgment, and to pay damages of $2,500--Letter marked "without prejudice"--On September 3, 2002, solicitors for plaintiff accepted settlement offer-- Offers of settlement must meet three conditions to be recognized as privileged: (a) litigious dispute in existence or within contemplation; (b) communication made with express or implied intention would not be disclosed to court in event negotiations failed; and (c) purpose of communication to attempt to effect settlement--If dispute arising as to existence of settlement, necessary for Court to have access to documents in order to resolve conflict--In such circumstances, documents entered as evidence in order to determine whether parties reached settlement--Fraiberg J. in Ferlatte v. Ventes Rudolph Inc., [1999] Q.J. No. 2735 (S.C.) (QL) commenting that marking correspondence "Without Prejudice" not by itself assuring protection--Rather, contents of correspondence determining matter--Offers of settlement and ancillary communications therefore presumed protected until acceptance, even without warning--Words "Without Prejudice" or expressions to similar effect not really necessary on offers of settlement, and once offers accepted, useless-- Applying principles to case at bar, letters of August 15, 2002 and September 3, 2002 admissible as evidence--Defendants, by letter of August 15, 2002, indicated acceptance of non-monetary terms relating to trade-mark infringement as set out in statement of claim--Plaintiff's letter of September 3, 2002, constituting acceptance of offer to settle--Offer to settle, as detailed in letter of August 15, 2002, clear and unambiguous --Defendants neither indicating specifically rejecting certain portions of statement of claim, nor that offer conditional on parties signing formal contract--Accordingly, parties had reached agreement to settle action--Motion granted.