How can anyone refuse confidentiality for negotiations, in the teeth of Settlement Privilege, if negotiations are the same as settlement discussions?

Question

I am flabbergasted by these quotations of lawyer John Trueman. After attending law school at UBC, Trueman clerked at the Supreme Court of Canada for Sheilah Martin J.

As "negotiations" and "discussions for the purpose of settlement" are basically the same, then doesn't Settlement Privilege cover them all by automatic operation of the law? How can litigants "choose" to refuse confidentiality during negotiations, in the face of Settlement Privilege?

Some of the answers given here confuse the separate issues of (1) confidentiality during settlement discussions, and (2) confidentiality of the resulting settlement agreement.

Personally, I do not think you should agree to confidentiality during negotiations, because that could prevent you from getting help with your case, such as from this group. You might consider responding to any such request with “Just as [airline] has retained you to advise it on this matter, I intend to obtain whatever information and advice I require. For that reason, I cannot accede to your request for confidentiality.”

Keep in mind that whether or not you agree to confidentiality during negotiations, discussions for the purpose of settlement are presumptively inadmissible in court. This is called “settlement privilege.”

They are basically the same. If you wanted to split hairs, I suppose you could say that “discussions” include the parties obtaining more information about each other’s case (to better understand the strength of their own position), while “negotiations” might refer more narrowly to the process of exchanging settlement offers.

Answer 1

Confidentiality and settlement privilege are not the same. Settlement privilege does not imply confidentiality. The existence of settlement privilege does not preclude refusal of confidentiality.

Settlement privilege is the presumptive inadmissibility in court of communication between the parties for the purpose of settlement.

See Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 at paras. 37 & 39 (internal citations removed):

settlement privilege is an evidentiary rule that relates to the admissibility of evidence of communications. It does not prevent a party from disclosing information; it just renders the information inadmissible in litigation.

...

A form of confidentiality is inherent in mediation in that the parties are typically discussing a settlement, which means that their communications are protected by the common law settlement privilege. But mediation is also a “creature of contract”, which means that parties can tailor their confidentiality requirements to exceed the scope of that privilege and, in the case of breach, avail themselves of a remedy in contract.

Confidentiality would be an additional constraint, only applicable by virtue of contract, or assumed voluntarily as a condition of further negotiation.