National Bank Financial Ltd. v. Potter

National Bank Financial Ltd. v. Potter

Concluded settlement agreements in the securities/regulatory context that proceed on agreed facts and are published under the governing regulatory regime are not protected by settlement privilege because they contain express and implied waivers and disclosure serves an overriding interest of justice; such agreements remain subject to ordinary admissibility rules and are admissible here as party admissions/similar fact evidence because their probative value (nexus and temporal overlap to alleged supervisory failings) outweighs any prejudicial effect.

Citation
2012 NSSC 76
Parties
Plaintiff and Defendant by Counterclaim: National Bank Financial Ltd.; Defendants and Plaintiffs by Counterclaim: Daniel Frederick Potter et al.; Defendant; Plaintiff by Counterclaim: BMO Nesbitt Burns
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
17 February 2012
Procedural Posture
Civil — Securities/regulatory Enforcement; Civil Claims for Failure to Supervise / Trial Motion on Admissibility of Evidence (settlement Agreement)
Outcome
Settlement agreement between National Bank Financial Ltd. and IDAC is not protected by settlement privilege and is admissible in this action subject to weight
Legal Topics
Settlement Privilege, Admissibility of Settlement Agreements, Party Admissions, Hearsay Exception, Similar Fact Evidence, Public Interest Waiver, Publication of Regulatory Settlements
Source Language
English
Evidence Securities Regulation Civil Procedure Administrative Law Professional Negligence Settlement Privilege Admissibility of Settlement Agreements Party Admissions +4 more

Case Brief

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Parties

National Bank Financial Ltd.

Plaintiff and Defendant by Counterclaim

Daniel Frederick Potter et al.

Defendants and Plaintiffs by Counterclaim

BMO Nesbitt Burns

Defendant; Plaintiff by Counterclaim

Procedural Posture

Civil — Securities/regulatory Enforcement; Civil Claims for Failure to Supervise / Trial Motion on Admissibility of Evidence (settlement Agreement)

Legal Issues

  1. 1 Whether settlement privilege protects the concluded settlement agreement between NBFL and IDAC from use in this civil action
  2. 2 If not privileged, whether the settlement agreement is admissible evidence in this action

Ratio Decidendi

Concluded settlement agreements in the securities/regulatory context that proceed on agreed facts and are published under the governing regulatory regime are not protected by settlement privilege because they contain express and implied waivers and disclosure serves an overriding interest of justice; such agreements remain subject to ordinary admissibility rules and are admissible here as party admissions/similar fact evidence because their probative value (nexus and temporal overlap to alleged supervisory failings) outweighs any prejudicial effect.

Court Disposition

Settlement agreement between National Bank Financial Ltd. and IDAC is not protected by settlement privilege and is admissible in this action subject to weight

Orders

  • Settlement agreement between NBFL and IDAC admitted into evidence for the truth of its contents subject to weight at trial
  • Admissibility is on the basis of party admissions/hearsay exception and as permissible similar fact evidence where probative value outweighs prejudicial effect