Is Without Prejudice an established exception to the Limitations Act?

Thus, despite the assertion of Burnyeat J., in Berry v. Cypost Corp., [2003 BCSC 1827, 21 BCLR (4th) 186] I cannot agree that there is any authority supporting the proposition that use of otherwise privileged correspondence, for the purpose of establishing confirmation of a cause of action pursuant to subsections 16(1) and (2) of the Limitations Act, is an established exception to the settlement privilege. I can envisage a circumstance where use of “Without Prejudice” correspondence to establish confirmation for purposes of the Limitations Act may well be an exception where the circumstances also establish some blameworthy or meritorious conduct, as a result of which, a “compelling or overriding interest of justice” warrants admitting the correspondence, notwithstanding the settlement privilege. I cannot, however, agree that absent some such special reason, there is anything about confirmation, for purposes of the Limitations Act, that would outweigh the public policy interest, in promoting resolution of disputes by negotiated settlement, and justify admitting in evidence communications protected by settlement privilege. Relevance to confirming a cause of action, for purposes of subsections 16(1) and (2) of the Limitations Act is not, alone, sufficient. [Underlined emphasis in original, italics emphasis added]