Union Carbide v. Bombardier: Confidentiality Of Settlement Communications

A decision of the Supreme Court of Canada released on May 8, 2014 has clarified that a confidentiality clause in a mediation contract will not restrict a party from producing evidence of communications made in the mediation context in order to prove the terms of the settlement, unless that is the clearly intended effect of the mediation contract.

In Union Carbide Canada Inc. v. Bombardier, 2014 SCC 35, the Supreme Court of Canada addressed the question of whether a mediation contract with an absolute confidentiality clause displaces the exception to common law settlement privilege which allows a party to disclose protected communications in order to prove the existence or scope of a settlement. The Court held that a confidentiality clause in a mediation contract will not restrict a party from producing evidence of communications made in the mediation context in order to prove the terms of the settlement, unless that is the clearly intended effect of the