As Rick Weiler notes in a December 22 post on the Kluwer Mediation Blog, the issue of mediation confidentiality “arises before the Courts from time to time and we are fortunate to have the recent, well-reasoned decision of Madam Justice J. Mackinnon of the Ontario Superior Court in Johnston v. Locke et al.”

The ruling was on an objection to the admissibility of an email written by a party during an ongoing mediation. The Court ruled, correctly in my view, that the communication was covered by settlement privilege and therefore inadmissible. The decision provides an excellent summary of the Ontario law in this area as it stands today and rather than paraphrase it, I urge you to read the full decision […]

Following Rick Weiler’s advice, I will not attempt to paraphrase the decision either, all the more so because I am not in any sense qualified to do so, not being a lawyer myself.  I would simply note that one of the matters dealt with in the decision is the jurisprudence on settlement privilege as a class privilege, and as a privilege that is established on a case-by-case basis.

The difference in approach affects the burden of proof. If mediation is part of the settlement privilege, the party seeking disclosure must establish that the circumstances fall within an exception such as to prove the existence or terms of a completed settlement agreement. On the other hand, with a case-by-case privilege approach, there is a presumption of disclosure unless the party seeking privilege can establish that the Wigmore criteria have been satisfied.

Justice Mackinnon rules that “[a] case by case analysis does not adequately support the policy underlying settlement privilege”, and she cites a summary of the policy interest:

§14.313   It has long been recognized as a policy interest worth fostering that parties be encouraged to resolve their private disputes without recourse to litigation, or, if an action has been commenced, encouraged to effect a compromise without resort to trial.

§14.315   In furthering these objectives, the courts have protected from disclosure communications, whether written or oral, made with a view to reconciliation or settlement. In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming. (In Bryant, Lederman, & Fuerst, The Law of Evidence in Canada, 2009, p. 1030)

Again, as Rick Weiler urges, the full decision should be read.