“What sensible man would attempt settlement if it could be used against him at trial?”1

This post will explore the development and limits of settlement privilege and how settlement privilege interacts with mediation. Settlement privilege, the ability to shield the deal making and the deal, is essential for negotiations and mediations. This paper is organized into three major sections: introduction to settlement privilege, application to mediation and application to partial settlement. In the introduction to settlement privilege section the development of settlement privilege and the without prejudice doctrine will be explored along with the exceptions to settlement privilege found in Canadian jurisprudence. In the application to mediation section, settlement privilege’s interaction with common confidentiality provisions and the role of case by case privilege will be examined. Settlement privilege applies differently in the setting of settlement with one of many defendants; in the application to partial settlement section the most common types of partial settlement agreements and how settlement privilege applies will be reviewed. Throughout it will be clear that settlement privilege and the confidentiality of settlement discussion is fostered because of the value it holds in promoting settlements.

As a starting point to discuss settlement privilege it is useful to review what settlement privilege is not. Generally the courts, as finders of fact, like information. Information is generally admissible as evidence unless it fits into a class or situational privilege. Perhaps the most well known class privilege is solicitor client privilege. Solicitor client privilege or legal advice privilege extends from the client to the lawyer and her staff. It is forever and is owned by the client. The courts will uphold this privilege despite the potential probative value of the evidence it could otherwise hear. There are very few exceptions to solicitor client privilege. Litigation privilege extends this zone of privacy to people that a litigant may hire or reports that may be prepared for the dominant purpose of litigation2. Litigation privilege ends with the conclusion of the litigation.3 Both litigation and solicitor client privilege concern only one side of a dispute. It offers no protection of settlement discussions.

While there are other types of class privilege including national security privilege and informant privilege there are few natural overlaps between these other privileges and settlement privilege, so there is no need to review them here. The Supreme Court has signaled that the common law will not be giving way to any new class privileges.4 However has left open the possibility of situational privilege being applied to situations that warrant it. This is also referred to as case by case privilege.

Settlement privilege developed out of the need for litigants to be able to discuss a dispute in frank terms in a way that could foster settlement. Without a way to probe the possibility of settlement, litigation would be the destination for a much larger percentage of disputes. Canadian courts have repeatedly noted how overwhelmed they are and have held that encouraging people to settle out of court is good public policy,5 a position they have held since the 19th century.6 The importance of settlement discussions and the resultant agreements is why Canadian courts protect settlement privilege. It is the court’s position that it is good public policy to encourage settlement by creating a zone of privacy around negotiation and settlement of legal disputes.

In order to determine what is covered by settlement privilege the courts in Canada apply a three part test:

A litigious dispute must be in existence or within contemplation; The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and, The purpose of the communication must be to attempt to effect a settlement. 7

The first branch of the test, that a litigious dispute must be in existence or within contemplation, is not satisfied by a mere disagreement. The party claiming the privilege bears the onus that litigation was being contemplated or was already underway.8 The second and third branches of the test developed as the without prejudice doctrine which is explicated in the following section.

Without Prejudice Doctrine

It has become standard form among some lawyers to include, in every email they send, a disclaimer that the communication is sent without prejudice. This is both bad form and not particularly useful. For the purpose of this paper, without prejudice communication is separated from settlement privilege. Without prejudice communication is used to describe privileged settlement communication excluding the final deal. Settlement privilege is used to describe the the privilege that protects those communications and the settlement more generally. This section will review the without prejudice principle, the value of the label, general exceptions to the rule and special exceptions to the without prejudice rule that have developed in the area of employment law. Common law settlement privilege developed from the without prejudice rule.

There is nothing magical about the words Without Prejudice, and failure to mark a communication without prejudice does not foreclose a claim that the communication is made without prejudice. Merely writing without prejudice on the communication does not make it so. In Bellatrix Exploration Ltd. v. Penn West Petroleum the Alberta Court of Appeal articulated this clearly: “The notation “without prejudice” is not conclusive in establishing privilege. If the contents of a communication are truly in furtherance of settlement, and therefore privileged, it makes no difference whether the communication is marked “without prejudice” or not.”9 Since the courts have an interest in maintaining the primacy of their truth seeking they are not obliged to follow one party’s label of without prejudice unless it is supported by the public policy interest of furthering a settlement to actual or contemplated litigation.

Since before the turn of the previous century Canadian courts have recognized “[o]n grounds of public policy, letters written without prejudice and written bonâ fide to induce the settlement of litigation, are not to be used against the party sending them.”10 Once qualified as a settlement communication, the privilege will extend broadly yielding to the two major exceptions of fraud and threats. Fraud is an exception as protecting the evidence of a fraudulent offer or admission from a court or tribunal would short circuit the truth seeking function of the court. The without precedent rule and settlement privilege represent an impediment to that truth seeking function. When that is balanced against the possibility of settlement, the greater good is on the side of settlement. When it is balanced against protecting fraudulent dealings, clearly the court’s need to find the truth outweighs any potential good. For a similar reason threats made in a settlement communication are also producible as evidence. In this context threats mean illegal or heavy handed threats. The threat of continued litigation does not fit into the exception. Both fraud and threats are evidence of wrong motives11 that are not conducive to settling a dispute.

Special Rules for Employment Cases

Settlement privilege in employment performs much the same function as in other areas of law but special rules have developed to address the employment paradigm. The court recognizes three additional exceptions to the general rule that settlement discussions are without prejudice. Where the defendant employer is alleging cause, in cases alleging mental distress, and in claims seeking punitive damages relevant without prejudice communications will be admitted.12

Defendant employers who allege cause at the point of discharge avoid statutory and common law obligations. It is a high standard to meet. In cases where an employer alleges cause and then offers some amount of notice, the courts have admitted the offer of notice as evidence.13 The cases that activate this exception do so because offers to settle are made without litigation being contemplated.14 Accordingly privilege does not attach and the offers to settle are seen as the employer opting to complete the contract but miscalculating what is owed to the employee. In this way it is debatable if this is a true exception as the first branch of the test is not satisfied; while the defendant may have been worried about litigation, it does not flow that the litigation was being contemplated by the worker who was trying to negotiate the value of their contract. If an offer to settle was made after litigation was initiated or threatened, then the without prejudice rule would apply to an employer offer to settle. Likewise, if the amount discussed was not an attempt to estimate or replace notice but was an attempt to buy peace, settlement privilege will prevent the introduction of the settlement.

In employment cases where an employee alleges damages for mental distress where the employer’s offers to settle or the way in which they conducted settlement negotiations forms the basis for the claim of mental distress, settlement privilege will yield. This is because the claim itself is based on damages suffered as a result of what would otherwise be protected communication. In order for the court to consider if the damage was a result of malfeasance or misconduct the court must examine the events in question. This is a narrow exception that is fact specific. It is an exception that was explained in Ariganello v. Dun & Bradstreet Canada Ltd. by Master Donkin: “when the so-called offer of settlement is introduced, not to show any admission by either party, and not to indicate the strength or weakness of the case of either party but rather, as the only way to answer an accusation of conduct deserving punishment, then it should be possible to plead the offer.”15 In these exceptional cases the settlement offers are allowed to be pleaded in order for the defendant to answer a charge that they may otherwise be liable for.

Settlement Privilege, once established, is a broad and powerful privilege. The narrow exceptions reviewed thus far have allowed the admission of settlement discussions to the extent that admission is required to answer a narrow question raised by one of the parties via their conduct or pleadings. There is also a general exception to settlement privilege where the public interest in disclosure exceeds the public interest in encouraging settlement. This balance is tipped in cases of fraud or misrepresentation and in cases concerning over recovery of losses. These exceptions protect the public interest by guarding settlement privilege against abuse; they are not available as a remedy for hard bargaining.16 An exception will also be made to help ground the settlement agreement.

While settlement privilege cloaks bona fide attempts to settle a litigious dispute, the privilege will not protect misconduct. Threats, fraud and misrepresentation will remove the protection offered by the privilege. In Underwood v. Cox Latchford J. in his concurring opinion found that “This rule [settlement privilege], founded on public policy, cannot be used as a cloak to cover and protect a communication such as the letter in question, which contains no offer of compromise, but a dishonourable threat.”17 In Underwood the court found threats, fraud and misrepresentation. Threats of bankruptcy and in patent suits have also been found to lack the protection of settlement privilege, because the threat itself is governed by statutory disclosure.

The BC Court of Appeal found that necessity and relevance were paramount factors when considering if privilege should be waived in Dos Santos v. Sun Life Assurance Co. of Canada. This was an appeal from a Judge overturning a Master’s decision that only the amounts attached to each head of damage needed to be disclosed to Sun Life who was liable for the defendant’s future earnings. Sun Life sought access to the supporting documents from mediation as they were entitled to 75% of the amounts allocated towards future earnings, and in their view the amount attached to the future lost earnings head was too low.18 The court found in this case that settlement privilege did cover the settlement discussions including the documentation associated with predicting future earnings but found that the relevance and necessity of disclosure of the documentation required an exception.19 While the orbiter framed this exception as a public policy exception as Sun Life required this information to enforce a right they had obtained by contracting with the defendant, it also serves the interests of justice in preventing the defendant from over recovery for lost future earnings.20

The narrow public policy exceptions are outliers. The most common exception to settlement privilege is when the parties are at odds over ambiguity in the agreement and seek to introduce evidence of the discussions that led to the deal. The admission of evidence of a settlement required by both common21 and statute law.22 Obviously, since the goal of providing settlement privilege is to encourage settlement, evidence of a meeting of the minds – that is evidence of the agreement – must be admissible.

Having satisfied the three branches of the test the courts will give wide latitude to the communications that fall under the protection of settlement privilege. They have included not only communications that expressly make offers to settle but also to reasonably connected communications.23 The Supreme Court of Canada has affirmed that “[t]he purpose of settlement privilege is to promote settlement. The privilege wraps a protective veil around the effort the parties make to settle their disputes by ensuring that communications made in the course of these negotiations are inadmissible.”24 Accordingly, the privilege will cover most negotiations and settlements but yield when the purpose of one party is not genuinely to settle. If a settlement results from discussions and the discussions are needed to shed light on the meaning of the agreement, the purpose of settlement privilege requires that the discussions be admissible.



Beyond Settlement Privilege in Mediation

As previously noted settlement privilege applies to mediation. Wagner J. observed that “common law settlement privilege and confidentiality in the mediation context are often conflated.”25 Confidentiality agreements do not supplant settlement privilege; they build upon it. While settlement discussion can occur with or without an express agreement of confidentiality, settlement privilege will exist even in the absence of a confidentiality agreement. The confidentiality clauses in the mediation agreements matter. This section will review settlement privilege in mediation and confidentiality language in mediation agreements, how the common law exceptions are dealt with under a confidentiality agreement and explore how some mediators meet their professional obligations through exclusions in their confidentiality agreements.

In addition to the zone of privacy offered by the common law rule, the parties freedom to contract allows parties to “tailor their confidentiality requirements to exceed the scope of that privilege.”26 The confidentiality clause in my agreement to mediate does little to expand that zone:

The Parties agree that mediation functions best when issues and interests can be discussed frankly and honestly. Accordingly, the Parties agree to full and honest disclosure to the other party and to the Mediator of all relevant information and documents. Information disclosed or documents created for the purposes of mediation shall be considered confidential and both parties agree any such information is shared without prejudice.27

Notably even more robust mediation confidentiality clauses, like this statement from Arbitration Place’s mediation agreement:

Anything which transpires in the Mediation will be confidential. In this regard, and without limitation:

(a) Nothing which transpires in the Mediation will be alleged, referred to or sought to be put into evidence in any proceeding;

(b) No statement made or document produced in the Mediation will become subject to discovery, compellable as evidence or admissible into evidence in any proceeding, as a result of having been made or produced in the Mediation; however, nothing will prohibit a party from using, in judicial or other proceedings, a document which has been divulged in the course of the Mediation and which it would otherwise be entitled to produce;

(c) The recollections, documents and work product of the Mediator will be confidential and not subject to disclosure or compellable as evidence in any proceeding.28

have been held to not displace the exceptions to common law settlement privilege as the parties, signing a standard agreement to mediate displayed “no evidence that they had any expectation for this mediation other than that it might help them settle the dispute.”29 So while the court leaves open the ability of parties to a mediation to contract to a higher standard of confidentiality, the parties wishing to do so would need to clearly articulate their desire to contract out of their common law rights.

Importantly, while the parties may expressly choose to contract out of their rights, they may not use confidentiality against parties who are not bound by such an

agreement.30 Accordingly the standard exclusions to settlement privilege remain for non parties despite the parties attempts to buttress them with explicit language within a mediation agreement. While mediators are not parties to the primary dispute they are a party to the mediation agreement and clauses that prohibit calling the mediator. In Rudd v. Trossacs the Ontario Divisional Court overturned the motion judge allowing a mediator to be called to give evidence about the existence of an agreement.31 The Court observed that “absent overarching considerations such as the revelation of criminal activity”32 the public interest favoured maintaining the confidentiality of mediation.

While it is possible to increase the zone of privacy around mediation settlement discussions it is also possible to expressly shrink the zone of privacy. The International Mediation Institute model rules offer such an exclusion of confidentiality:

7.6. The provisions of [confidentiality] shall not apply in the case of:

information concerning criminal acts in respect of which there exists a statutory obligation to report or a statutory right to report, information concerning the threat of a criminal act, and 33 complaints, disciplinary or liability proceedings against the Mediator. In such event the Mediator shall be released from his/her obligation to observe confidentiality insofar as may be necessary in order to defend himself against the claims and/or make a claim under his/her professional liability insurance.

Other common exclusions may include exclusions to satisfy the professional reporting obligations held by the mediator. Such an obligation would be incumbent upon a Professional Engineer, acting as a mediator, who would be required to report a poorly engineered building that posed a risk to the requisite authority.34

For mediations performed where litigation is not the logical end result, such as mediations to help achieve a collective agreement, common law settlement privilege does not apply. Settlement privilege does not attach to an attempt to settle any dispute. It only attaches to a dispute where litigation is underway or in contemplation. The vast majority of industrial bargaining disputes are not subject to binding arbitration, so they would fail the first branch of the test for settlement privilege. In Ontario, The Labour Relations Act provides that labour relations officers or mediators appointed under the Labour Relations Act are not compellable35 and any mediation performed is only able to be disclosed with the authoriztion of the labour relations board or the director of dispute resolution services.36 In United Brotherhood of Carpenters and Joiners of America, Lake Ontario District Council v. Lardale Construction, Lardale Construction Inc. the Ontario Labour Relations Board considered granting such authorization: “in the ordinary course, the Board will exercise its discretion and decline to allow communications made during the course of mediation efforts to be entered into evidence.”37 The board subsequently declined to allow the communication to be entered as evidence. This statutory privilege protects mediations that take place with a neutral appointed under the authority of the Labour Relations Act but is silent on mediations that are entered into voluntarily.

Mediators appointed under other acts or by the parties to aid in settling a collective agreement lack settlement privilege and they are not otherwise veiled by the Labour Relations Act. Arbitrator Surdykowski in Rainy River v Elementary Teachers Federation of Ontario applied the protection granted Minister of Labour appointed mediators to a Minister of Education appointed facilitator. The facilitator had worked with the Ministry of Education and Elementary Teachers Federation Ontario in an attempt to settle a collective agreement and, in this motion, the Rainy River School District sought to compel the testimony of the facilitator at an arbitration of nine individual and one policy grievance. Arbitrator Surdykowski reviewed the protection provided by 119(4) of the Labour Relations Act and concluded “It seems to me that nothing that was said to or by the facilitator/mediator is admissible.”38 There is no explanation in the award about the expansion of the protection offered by the Labour Relations Act. While the same public policy grounds exist for creating a zone of privacy around the mediation, this expansion is an error in law. While settlement privilege does not apply and legislative privilege does not attach, Arbitrator Surdykowski ultimately reached the correct decision to protect the facilitator.

Mediators and facilitators appointed by parties or a competent authority, as in Rainy River, in the absence of settlement privilege and without statutory privilege may still have protection on a case by case basis. The Supreme Court has answered the question of how to deal with confidentiality on a case by case basis. The court endorsed the Wigmore criteria borrowed from American jurisprudence. Under Wigmore communication should be kept privileged if it meets these four criteria:

(1) the communications must originate in a confidence that they will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.39

A collective bargaining mediation could certainly satisfy these four criteria. The mediator and parties are subject to the confidentiality clause in the mediation agreement (criteria one). It is well established that settlement of litigation is much more probable with the aid of confidentiality; Gray notes that “mediation works best if the parties are assured that their discussions with each other and with the mediator will be kept confidential.”40 The mediator is there to probe the interests of the parties and find a solution. Confidentiality is essential to the mediator’s role (criteria two). Since the time of Mackenzie King, Canadian policy has recognized that the public have a stake in the peaceful resolution of industrial disputes.41</a The community would protect confidentiality in collective bargaining mediation to the degree that it serves their interest in peaceful resolution (criteria three). The litigation in the Wigmore criteria is the litigation that is impacted by extending privilege over the mediation. In the case at hand, one could imagine a grievance arbitration flowing from a collective agreement whose terms were settled upon at a mediation. In such an arbitration it would be difficult to imagine that the interests of a single grievor would be worth the damage to the parties’ relationship (criteria four). Satisfying all four criteria, in most cases, collective bargaining mediation will be subject to a such a privilege.

Not all mediations absent litigation will be subject to case privilege. A mediation between divorced parents who are not considering litigation would easily meet the first three of Wigmore’s criteria however the impact on the child would likely be to great to exclude any evidence the court found relevant. Confidentiality on a case by case basis requires an examination of each of the elements for each case.

In Ontario, the Commercial Mediation Act provides statutory privilege to mediations not aimed at settling a collective agreement or prescribed by other legislation performed by human mediators.42 It excludes all communication for and information about the mediation and its outcome from discovery and makes it inadmissible in court.43 Importantly it applies to all commercial disputes even in the absence of an intention to litigate.44

Mediations are for the most part private. In the cases of mediations prior to litigation settlement privilege applies as a class privilege with exceptions for misdeeds or to provide evidence of what an ambiguous agreement means. Confidentiality clauses in a mediation agreement are essential to protect the mediator and the parties as it expressly states the parties’ intentions to keep information private. The weakness of confidentiality clauses in mediation agreements is that they can only be held against parties to the mediation agreement. Third parties may be able to seek access to information disclosed at a mediation. In these cases, the court will consider privilege on a case by case basis. To do this they will apply the four part Wigmore test to see if the communication is to be kept confidential. This approach extends the veil of privacy afforded negotiation to mediations. For commercial disputes, the Commercial Mediation Act provides statutory privilege. Mediation’s express confidentiality provisions enhance the parties’ expectations of privacy and maximize the chances of settlement; the value of this privacy has been recognized in both statute and common law.



Settlement Privilege – Partial Settlements

Settlement privilege applies differently to partial settlement agreements in multiparty actions.45 Depending on the nature of the settlement, the privacy of the terms or the existence of a deal may prejudice the remaining non settling defendants. These partial agreements present themselves as either Pierringer agreements or Mary Carter agreements. This section will review these agreements and the impact they have on settlement privilege. Throughout this section the term settling defendants will be used to denote defendants who enter into an agreement with the plaintiff to limit or alter their exposure regardless if they remain listed as a defendant.

Pierringer Agreements

Pierringer agreements are settlements with some but not all of the defendants in a matter. Typically the settling defendant agrees to pay the plaintiff some amount of money in exchange for limiting the settling defendants liability and cross liability. These agreements

permit some parties to withdraw from litigation, leaving the remaining defendants responsible only for the loss that they may be found to have actually caused, with no joint liability. As the remaining, Non-Settling Defendants are responsible only for their proportionate share of any loss, a Pierringer agreement can properly be characterized as a ‘proportionate share settlement agreement’.46

The rules of settlement privilege protect the discussions and documents generated for the purposes of reaching a Pierringer agreement; however the end agreement is subject to the approval of the court. Canadian courts typically add additional protections for the non settling defendants such as disclosure of settling defendant’s evidence and even disclosure of non financial terms.47 Since each defendant is only responsible for their share of the damages, there is little chance of double recovery48 and the amounts can remain confidential.49 Although in the leading case, Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, the plaintiff had even agreed to release the final amounts to the non settling defendants at the conclusion of the trial to ensure there was no chance of double recovery. Pierringer agreements are important tools for resolving and simplifying multiparty litigation. While the removal of a defendant changes the litigation landscape Canadian courts have protected the agreements and their results with settlement privilege; however the agreements need to be approved by the courts and the courts will engage in balancing the non settling defendants needs for evidence with the privilege that cloaks the settlement itself. In other words, the court will attempt to ensure that non settling defendants are left no worse off because of the departure of one or more defendants who choose to settle, and they will work to ensure conversely that the non settling defendant gains no advantage by not settling.

Mary Carter Agreements

Pierringer agreements have their root in the movement towards settlement; Mary Carter agreements are something else entirely. Where a Pierringer is a withdrawal from the field of battle, a Mary Carter agreement is a battle pact where a co defendant is motivated to become a quisling. In a Mary Carter agreement the settling co-defendant agrees to aid the plaintiff while remaining a co-defendant. They typically pay some amount with the understanding that if the plaintiff recovers over a certain amount from the non settling defendants, the settling defendants liability will be decreased. While codefendants in their pleadings plead a position of defence, after a Mary Carter agreement is entered the settling defendants are no longer aligned in interests with the non settling defendants. The Ontario Court of Appeal has observed that Mary Carter agreements “change entirely the landscape of the litigation”50 and, as such, must be disclosed immediately.

A Mary Carter agreement must be disclosed to the other parties and the court if it is to have effect. The negotiations of a Mary Carter agreement are covered by privilege in Ontario. However this is an area of some debate as the traditional impetus for protecting settlement discussions, avoiding litigation, is absent by what is in essence an agreement to team up against the remaining defendant or defendants. Settlement privilege developed around the public policy good of promoting settlement, Mary Carter agreements do not promote settlement. It is important that settlement privilege protect Mary Carter negotiations. To void the protection offered based on the result or non result would short circuit true settlement discussions.

There is value in protecting the settlement discussions that lead to a Mary Carter agreement. Parties who enter into settlement discussions, do so without a clear picture of the final settlement terms. To void privilege over discussions that took place without foreknowledge of the result of those discussions would be an unacceptable erosion of this important protection. Just as failed negotiations are protected, negotiations leading to partial agreements must be protected or the parties may not sit down in the first place.

Negotiation of partial settlement agreements, be they Pierringer or Mary Carter, are protected by settlement privilege. It is only once an agreement is finalized that the specific disclosure requirements are activated. This protection along with the disclosure requirements balance the public policy good of settling or simplifying litigation against the unfairness that would otherwise exist for any non settling defendants. The courts will work to balance the interests of the parties and not give either side an unfair advantage when dictating disclosure of terms. When dealing with Pierringer agreements the court recognizes settlement privilege and intervenes to ensure that the remaining defendants are not prejudiced by the withdrawal of the settling defendants. Mary Carter agreements, once crystalized, must be disclosed immediately in order deal fairly with the non settling defendants who are now at adverse interest to the settling defendants. On whole, courts respond to incomplete settlement with incomplete privilege.

Conclusion

Settlement privilege supports parties solving their own problems. It developed out of the common law without prejudice doctrine where communications for the purposes of settlement of litigation were not allowed in pleadings or admitted as evidence. The court has developed a set of exceptions to settlement privilege for cases of negotiation misconduct and to allow parties to answer allegations arising from negotiations themselves. An exception to settlement privilege will also be made to enforce the agreement made. Mediation can offer parties the additional protection of confidentiality while maintaining settlement privilege. In the setting of commercial disputes and collective agreement disputes, litigation or the contemplation of it is not required to activate the protection as the public interest favours protecting settlement discussions through either the commercial mediation act or situational privilege. In cases of partial settlement, where the plaintiff settles with some but not all of the defendants in a suit, the court will apply disclosure rules to ensure the fair treatment of the non settling party or parties. The courts consistently recognize the importance of shrouding settlement negotiations and outcomes with privacy to maximize the opportunities to achieve settlement.

If you are looking to confidentially maximize your chances of settlement, mediation can help. Contact Wakely Mediation today.

1. William Allan Real Estate Co. v. Robichaud et al., 1987 CarswellOnt 139 at para 14 [Robichaud].↩

2.John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, (Toronto, ON. Buttersworths. 1999) s 14.78.↩

3. ibid, s 14.86↩

4. R. v. National Post, 2010 SCC 16 at para 42 [National Post].↩

5.Meyers v. Dunphy, 2007 NLCA 1 see para 14ff [Meyers]↩

6. York (County) v. Toronto Gravel Road & Concrete Co., (1882), 3 O.R. 584 (H.C.J.). and Pirie v. Wyld (1886), 11 O.R. 422 (C.A.) [York]..↩

7. Sopinka, supra note 2 s 14.207. ↩

8. Cytrynbaum v. Gineaut Holdings Ltd. et al, 2006 BCSC 468 at paras 26-28 [Cytrynbaum]. ↩

9.Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10 at para 25 [Bellatrix]. ↩

10.Underwood v. Cox, [1912] O.J. No. 131 at 75 [Underwood]. ↩

11. Pirie v. Wyld, 11 O.R. 422 at para 24 [Pirie]. ↩

12. Ramos v. Hewlett-Packard (Canada) Co., 2017 ONSC 4413 at para 7 [Ramos]. ↩

13. Tracey v. Swansea Construction Co. Ltd., 1964 CanLII 271 (ON SC) at para 10 [Tracey]. ↩

14. Williamson v. Grant Brown National Leasing Inc., 1986 CanLII 2695 (ON SC) at para 12 [Williamson].↩

15. Ariganello v. Dun & Bradstreet Canada Ltd., [1993] O.J. No. 411 at para 5 [Ariganello]. ↩

16. Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623 at para 19 [Sable]. ↩

17. Underwood, supra note 10 at 82. ↩

18. Approximately $53,000 of the $900,000 settlement was allocated towards future earnings. ↩

19. Dos Santos v. Sun Life Assurance Co. of Canada, 2005 BCCA 4 at para 37 [Dos Santos]. ↩

20. Sable, supra note 16 at para 19. ↩

21. Bombardier inc. v. Union Carbide Canada inc., 2014 SCC 35 at para 45, 1 SCR 800 at para 66 [Bombardier]. ↩

22. Commercial Mediation Act, 2010, S.O. 2010, c. 16, Sched. 3, s 9(2)(b). ↩

23. Bellatrix, supra note 9 at para 26. ↩

24. Sable, supra note 16 at para 2. ↩

25. Bombardier, supra note 21 at para 45. ↩

26. Ibid at para 39. ↩

27. Agreement to Mediate by Wakely Mediation (14 Feb 2019). ↩

28. Robichaud, supra note 1 at para 9. ↩

29. Ibid at para 65. ↩

30. Owen V Gray. “Protecting the Confidentiality of Communications in Mediation”(1998), 36 Osgoode Hall L.J. 668 at 673.↩

31. Rudd v. Trossacs, 2006 CarswellOnt 1417 at para 43. ↩

32. Ibid at 39. ↩

33. International Mediation Institute, Model Mediation Rules, <online:https://www.imimediation.org/wp-content/uploads/2017/09/IMI_MEDIATION_RULES_2016_rev_3.pdf> Article 7.6. ↩

34. Professional Engineers Act, R.R.O. 1990, Reg. 941 s 72(2)(c).↩

35. Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s 120(1). ↩

36. ibid, ss 119(5), 119(6). ↩

37. United Brotherhood of Carpenters and Joiners of America, Lake Ontario District Council v. Lardale Construction, Lardale Construction Inc., 2002 CanLII 31021 (ON LRB) at para 40. ↩

38. Rainy River v. Elementary Teachers Federation of Ontario, 2014 CanLII 41242 (ON LA) at para 11. ↩

39. R. v. Gruenke, [1991] 3 SCR 263 at para 7.↩

40. Owen V. Gray, “Protecting the Confidentiality of Communications in Mediation” 1998 36:4 Osgoode Hall LJ 668 at 671. ↩

41. William Lyon Mackenzie King, Industry and Humanity, (Toronto: University of Toronto Press, 1973 reprint of 1918 original) Chapter 5. ↩

42. The Act excludes mediations done by computers without a human mediator. ↩

43. Commercial Mediation Act, supra note 22 s 9(1). ↩

44. Ibid, s 2(1). ↩

45. Recall that litigation privilege protects parties on the same side of an action ↩

46. Hollinger Inc., Re, 2012 ONSC 5107 at para 54 [Hollinger]. ↩

47. Sable, supra note 16 at para 24.↩

48. Ibid at para 26. ↩

49 Ibid at para 30. ↩

50. Aecon Buildings v. Brampton (City), 2010 ONCA 898 at para 13 [Brampton]. ↩