Boot Camp - Drafting a Release

Reaching a settlement brings relief. Drafting the release determines whether that settlement delivers the intended result. Wording that appears routine can surrender claims the client intended to preserve or expose the client to indemnity obligations arising from further litigation. Legal professionals must understand what the settlement resolves and how the release affects any claims that remain.

This session provides practical guidance for drafting releases that reflect the negotiated bargain. Participants will examine the scope of released claims, the terms commonly implied upon settlement, and the additional conditions requiring negotiation. The discussion also addresses claims-over clauses and the structures used when settling with some parties while continuing litigation against others. The accompanying Handout Material supports the discussion with case references and explanations that can be revisited when preparing or reviewing a release.

Drafting a Release

Takeaways:

1. Your Release Defines What the Settlement Resolves

A release is a binding contract. Its wording determines which claims are relinquished and which claims remain available. This session explains the differences between general releases and specific releases, along with the use of mutual releases. Participants will learn why the document must reflect the settlement actually negotiated and why additional conditions, such as confidentiality, require attention during negotiations.

2. Your Release Can Restrict Claims Against Other Parties

A promise to refrain from suing the released party may extend to proceedings against another person who might seek contribution or indemnity from that party. This session examines how claims-over clauses protect the finality purchased through settlement and why a later attempt to limit recovery may fail to preserve the intended lawsuit. The discussion of Sinclair-Cockburn v. Richards illustrates the importance of negotiating any reservation of further claims before signing the release.

Updated Handout Material: The handout now includes a post-presentation analysis of Fernandez v. Norseman Inc., 2026 ONCA 716. This recent Court of Appeal decision illustrates how a release given to a dealer barred subsequent litigation against the manufacturer, which sought indemnity from the dealer. The added analysis also explains how indemnity obligations could leave claimants responsible for reimbursing the very damages recovered through further litigation.

3. Your Release Must Accommodate Any Continuing Litigation

Settling with one party while pursuing another requires a deliberate structure. This session introduces Mary Carter agreements and Pierringer agreements, explaining how partial settlements address the settling party’s exposure while accommodating continuing proceedings. Participants will also examine disclosure obligations and the treatment of settlement payments when assessing further recovery. The practical goal is to align the release with the client’s intended litigation strategy.

Session 7: Drafting a Release is available as a stand-alone purchase for $100 plus HST and is also included in Boot Camp: Small Claims Court (2026). Access includes the session recording and accompanying Handout Material, with perpetual access for subsequent review.