What does 'without prejudice' mean in Ontario legal communications?

The phrase "without prejudice" — when used properly — signals that a communication is made in the context of an attempt to settle a dispute and cannot be used as evidence against the party who made it in any subsequent court proceedings. In Ontario, this concept is rooted in the common law principle of settlement privilege, which protects genuine settlement negotiations so that parties can explore compromise candidly without fear that their offers or admissions will be held against them at trial.

For the without-prejudice label to be effective, the communication must actually be made in the context of settlement negotiations. Simply writing "without prejudice" at the top of a document does not automatically protect it if the content is not a genuine attempt to settle. Courts look at the substance of the communication, not just the label.

In Ontario, without-prejudice communications typically cannot be produced or referred to in court to prove liability or the weakness of a position. However, they may be admissible for other limited purposes — for example, to establish whether a settlement agreement was reached, to determine costs consequences under Rule 49, or to demonstrate a limitation period was acknowledged. If you are sending settlement communications, label them appropriately and consider getting legal advice to ensure the protection actually applies. Receiving "without prejudice" correspondence from the other side should also be reviewed with your lawyer.