Saskatchewan Crop Insurance Corporation Appellant (Respondent/Defendant) v. Rick Peterson Farms Ltd., 2019 SKCA 19

Court of Appeal for Saskatchewan Docket: CACV3110 Citation: Saskatchewan Crop Insurance Corporation v Rick Peterson Farms Ltd. , 2019 SKCA 19 Date: 2019-02-19 Between: Saskatchewan Crop Insurance Corporation Appellant (Respondent/Defendant) And Rick Peterson Farms Ltd. Respondent (Applicant/Plaintiff) Before: Jackson, Whitmore and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr.

Justice Whitmore In concurrence: The Honourable Madam Justice Schwann In dissent: The Honourable Madam Justice Jackson On Appeal From: 2017 SKQB 215 , Swift Current Appeal Heard: March 16, 2018 Counsel: Randy Klein for the Appellant Tyler McCuaig for the Respondent Whitmore J.A. I. Introduction [ 1 ] This appeal by Saskatchewan Crop Insurance Corporation [SK Insurance] centres on the question of whether a document subject to a confidentiality clause must be produced by a party in litigation. For the reasons that follow, SK Insurance is required to produce the document in the circumstances of this case. II.

Background [ 2 ] Rick Peterson Farms Ltd. [Peterson] obtained an insurance policy from SK Insurance, which covered loss resulting from the inability to seed crops due to excessive spring moisture during the 2013 crop year. [ 3 ] Peterson claimed under its policy but that claim was denied by SK Insurance in August of 2013. Peterson pursued an appeal with the regional Management Group, which dismissed the appeal in February of 2014.

Peterson then appealed the regional Management Group’s decision to the Provincial Appeal Panel [Panel]. [ 4 ] The Panel is an independent advisory body that hears appeals and provides recommendations to the board of directors [the Board] of SK Insurance, which makes an ultimate decision as to whether a claim will be denied.

To participate in the Panel appeal process, Peterson agreed to an “Appeal Panel Limitations and Restrictions” agreement [Confidentiality Clause], which required Peterson to acknowledge that an application to the Panel is a “voluntary act” and that recommendations from the Panel to the Board “constitute privileged information”.

The full text of the Confidentiality Clause is as follows: I expressly acknowledge and agree that the Appeal Panel serves only as an advisory body to the Board of Directors of SCIC [SK Insurance] and as such, any conclusions reached by the Appeal Panel represent only recommendations that may, or may not, be accepted by the Board of Directors of SCIC. I further acknowledge that due to the possibility of further litigation, the recommendations of the Appeal Panel to the Board of Directors of SCIC constitute privileged information and will not be disclosed by SCIC to me or to any of my representatives.

I understand however that the final decision of the Board of Directors (after considering the Appeal Panel recommendations) will be communicated to me in a timely manner.

I further acknowledge and agree that participation in SCIC’s Appeal Panel procedure is entirely voluntary and shall not abrogate, eliminate, reduce, waive or compromise in any way whatsoever any legal rights that may be available to myself or to SCIC to pursue all matters in issue utilizing any and all legal remedies available to either party within the courts of the Province of Saskatchewan. [ 5 ] In May of 2014, the Board denied Peterson’s appeal for coverage based on the findings of the report of the Panel [the Panel Report], which, pursuant to the terms of the agreement referred to above, was provided to SK Insurance but not to Peterson.

Peterson issued a statement of claim on September 30, 2014. In pursuing the claim, Peterson requested that the Panel Report be disclosed and produced. SK Insurance refused to produce the Panel Report, claiming privilege. Peterson applied to the Court of Queen’s Bench for production of the Panel Report pursuant to Rule 5-12(2)(

a) of The Queen’s Bench Rules . III. The Court of Queen’s Bench Chambers Decision

[6] The Chambers judge first considered whether litigation privilege or settlement privilege applied to the Panel Report. Heagreed with the conclusion in Cote v Saskatchewan Crop Insurance Corporation, 2002 SKQB 138, 318, 37 CCLI (3d) 176 [Cote], a casewith similar facts, that the dominant purpose of the Panel Report was not for litigation and that it was not made for the purpose ofsettlement and, therefore, neither litigation privilege nor settlement privilege applied to the Panel Report.

In coming to this conclusion,the Chambers judge acknowledged that SK Insurance had amended its practices since Cote but, on the issue of privilege, he concludedCote remained instructive. [7] The Chambers judge then turned to whether the Confidentiality Clause operated to make the Panel Report privileged. Hefound, on a plain reading of the Confidentiality Clause, that the parties had agreed the Panel Report would be privileged.

As a result, heconsidered whether Union Carbide Canada Inc. v Bombardier Inc., 2014 SCC 35, [2014] 1 SCR 800 [Bombardier], applied such that aconfidentiality clause can override the exception to settlement privilege that enables parties to produce a confidential document to provethe existence or scope of the settlement. In Bombardier, the Supreme Court held that confidentiality clauses in mediation agreements,which purport to override a specific exception to settlement privilege, can successfully do so in certain circumstances.

However, theChambers judge found that Bombardier was restricted to that single exception in the context of settlement–mediation and was notapplicable to the case before him. [8] The Chambers judge then applied the Wigmore criteria (which I will discuss below) to determine whether theConfidentiality Clause operated to make the Panel Report privileged.

Following Bombardier, the Chambers judge determined that thefirst three Wigmore criteria would be redundant where the parties, as in the case before him, had agreed the Panel Report should beconfidential, leaving the fourth Wigmore criterion concerning the balancing of interests for consideration. He considered this fourthcriterion and found the benefit gained for the correct disposal of the litigation outweighed any injury caused by the disclosure of theinformation and ordered the production of the Panel Report.

From this decision, SK Insurance sought leave to appeal: Peterson vSaskatchewan Crop Insurance Corporation, 2017 SKQB 215, 70 CCLI (5th) 296 [Chambers Decision]. [9] On August 23, 2017, this Court granted leave to SK Insurance to appeal the Chambers Decision on the basis the Chambersjudge erred in finding the Panel Report was subject to disclosure and production. IV. Standard of Review [10] SK Insurance relies on Sable Offshore Energy Project v Ameron International Corporation, 2015 NSCA 8, 354 NSR (2d)333, and submits that the standard of review for determinations of privilege is correctness.

Peterson argues that the correct standard ofreview is palpable and overriding error and relies on the following authorities in support of that proposition: Husky Oil OperationsLimited v Anadarko Canada Corporation, 2004 ABCA 154, 354 AR 16 [Husky Oil]; Sattva Capital Corporation v Creston MolyCorporation, 2014 SCC 53, [2014] 2 SCR 633 [Sattva]; and Redhead Equipment v Canada (Attorney General), 2016 SKCA 115, 402DLR (4th) 649 [Redhead]. [11] This Court has previously addressed the standard of review applicable to determinations of privilege.

In Redhead, a Court ofQueen’s Bench Chambers judge determined whether 662 documents were subject to solicitor–client privilege, and 32 of those documentswere in issue on appeal. On appeal, this Court concluded the following: [21] On the basis of these cases, the standard of review with respect to determinations of privilege respecting particular documents ispalpable and overriding error. I agree with this approach. … [24] Because the determinations of the Chambers judge are predominantly factual or involve an

interpretation of the evidence as a wholewith regard to a particular document in the context of other documents in issue, I am of the view that the application of the law ofsolicitor–client privilege to these findings is not a question of law. It is a question of mixed fact and law from which a question of law isnot readily extricable regarding each document because there are so many factual variables with respect to each document. Thus, thematter necessarily lies toward the factual end of the mixed fact and law spectrum referred to in Housen [2002 SCC 33].

On this basis, thestandard of review on determinations of whether a particular document is privileged on the basis of the applicable law is palpable andoverriding error. [12] Contractual

interpretation is a question of mixed fact and law, subject to deferential review on appeal, unless there is anextricable question of law: see Sattva. [13] Therefore, in this case, whether the Chambers judge identified and applied the relevant law is reviewed on a standard ofcorrectness. The application of those principles to the facts is entitled to deference, unless there is an extricable question of law. V. Analysis A.

Did the Chambers judge err by using the Wigmore criteria to analyze theprivilege claim? [14] In this appeal, SK Insurance’s main argument is this: the Chambers judge should have honoured the Confidentiality Clauseby recognizing outright that it privileges the Panel Report, and he ought not to have turned to the Wigmore criteria to consider whether itwas privileged.

It argues that, in light of Bombardier and Slavutych v Baker, (SCC), [1976] 1 SCR 254 [Slavutych], it isopen to parties to create their own rules with respect to privilege so as to displace the common law when such rules are created in thecontext of alternative dispute resolution processes. Therefore, in its view, the Chambers judge erred by failing to apply Bombardier so as

to find that the Confidentiality Clause privileged the Panel Report and by instead turning to the application of the Wigmore criteria. [15] I note that SK Insurance’s notice of appeal alleges the Chambers judge erred in law in finding that litigation privilege did notapply. SK Insurance did not pursue this ground of appeal in its factum or in oral argument. For this reason, the application of litigationprivilege will not be considered herein.

Similarly, SK Insurance has not argued on appeal that settlement privilege applies to the PanelReport and its application will also not be considered. [16] Peterson, on the other hand, argues that Bombardier does not apply and that the Chambers judge took the proper approach. Itargues Bombardier dealt exclusively with an exception to settlement privilege and that the ratio of that decision is not applicable outsideof that specific context.

Therefore, Peterson argues, a Wigmore analysis was the appropriate framework for considering whether thePanel Report was privileged. [17] For the reasons that follow, it is my view that Bombardier must be confined to the context of settlement privilege only, anddoes not have the broader applicability suggested by SK Insurance. The Chambers judge was correct to apply the Wigmore criteria todetermine whether the Panel Report was privileged. [18] To address the issue presented in this appeal requires an understanding of the basic principles of law concerning privilege andwhat the Supreme Court decided in Bombardier.

I will deal with each of the following in turn: (

a) class and case-by-case privilege; (

b) the Bombardier decision: settlement privilege; (

c) class privilege and the panel report; (

d) the Bombardier decision: general applicability; and (

e) the panel policy change. a. Class and case-by-case privilege [19] In the context of civil litigation, there is a long-standing duty to disclose all relevant documents in a party’s possession, andthere is a corresponding duty to produce those documents, subject to privilege or other grounds (Spencer v Canada (Attorney General),2000 SKCA 96 at paras 13–15, [2001] 1 WWR 476). These duties are now incorporated into

Part 5, “Disclosure of Information”, of TheQueen’s Bench Rules – see Gordon Estate v Regina Qu’Appelle (Health Authority), 2015 SKQB 147, 475 Sask R 142: [8] There is a long-standing general duty to disclose all relevant documents in a party’s possession except those documents subject toprivilege.

Part 5 of The Queen’s Bench Rules now incorporates many of the principles and purposes of the duty to disclose informationin litigation before the court. The purposes identified include the mutual right of parties to obtain evidence that will be relied upon in theaction to narrow and define the issues between the parties, encourage early disclosure of facts and documents, facilitate an evaluation ofthe parties’ position promoting resolution of the issues in dispute and discouraging conduct that unnecessarily or improperly delaysproceedings or increase their costs (see Rule 5-1(1)).

The disclosure rules give the court a discretion to make any orders necessary toachieve these purposes. [20] As mentioned, privilege is one basis upon which production may be resisted. At common law, there are two broad types ofprivilege – class privilege and a privilege established on a case-by-case basis (R v National Post, 2010 SCC 16 at para 42, [2010] 1 SCR477 [National Post]).

In addition, privilege may also be conferred by statute. [21] Class privileges have been recognized where privilege is considered necessary to protect confidential communications in anunderlying relationship between the parties (see National Post at para 42).

Recognized class privileges include solicitor–client privilege(Pritchard v Ontario (Human Rights Commission, 2004 SCC 31, [2004] 1 SCR 809), litigation privilege (Lizotte v Aviva Insurance Co.of Canada, 2016 SCC 52, [2016] 2 SCR 521 [Lizotte]), informer privilege (R v Basi, 2009 SCC 52, [2009] 3 SCR 389), and settlementprivilege (Sable Offshore Energy Inc. v Ameron International Corp., 2013 SCC 37 at para 12, [2013] 2 SCR 623).

Where such a classprivilege applies, there is a prima facie presumption of inadmissibility (Lizotte at para 33, National Post at para 60, and R v Gruenke, (SCC), [1991] 3 SCR 263 at 286 [Gruenke]). [22] Not every relationship receives this protection. The law recognizes very few class privileges: “It is likely that in future such‘class’ privileges will be created, if at all, only by legislative action” (National Post at para 42).

For example, the common law does notrecognize a privilege protecting communications between doctor–patient (Halls v Mitchell, (SCC), [1928] SCR 125),priest–penitent (R v Fosty, (SCC), [1991] 3 SCR 263 [Fosty (SCC)]), or journalist–source (R v National Post, 2010 SCC16, [2010] 1 SCR 477).[1] Nor is there a class privilege over therapist–client records in a sexual assault context (A.(L.L.) v B.(A.), (SCC), [1995] 4 SCR 536). As stated by Sidney M. Lederman, Alan W. Bryant, and Michelle K.

Fuerst in The Law ofEvidence in Canada, 5th ed (Toronto: LexisNexis, 2018) [The Law of Evidence], “the modern Canadian trend is to accord privilege onlywhere necessary, on a case-by-case basis, and on as limited a basis as possible, in order to avoid the risk of even ‘occasional injustice’”(at para 14.7). [23] The second type of privilege that has been judicially recognized is that which is conferred on a case-by-case basis. In thiscontext, communications are presumptively admissible and become inadmissible only once the privilege is recognized in the particularcase (National Post at para 60; Lizotte at para 32).

Claims of case-by-case privilege are resolved in accordance with the Wigmorecriteria, reproduced here from Slavutych (at 260):

(1) The communications must originate in a confidence that they will not be disclosed.

(2) The element of confidentiality must be essential to the maintenance of the relationship in which the communications arose.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gainedfor the correct disposal of litigation. (Italic emphasis in original) See also John Wigmore, Evidence in Trials at Common Law, vol 8, 4th ed (Boston: Little Brown, 1961); Gruenke at 289–290; M.(A.) vRyan, (SCC), [1997] 1 SCR 157 at para 20 [Ryan]; and R v McClure, 2001 SCC 14 at para 29, [2001] 1 SCR 445.

Allfour Wigmore criteria must be satisfied before a case-by-case privilege exists (Nation Post at para 53, and Globe and Mail v Canada(Attorney General), 2010 SCC 41 at para 22, [2010] 2 SCR 592). Case-by-case privilege and the Wigmore criteria will be furtherdiscussed below. [24] With these basic principles in mind, I turn to the Supreme Court’s decision in Bombardier. b. The Bombardier decision: Settlement privilege [25] In Bombardier, the Supreme Court considered the role played by settlement privilege as it interacts with the confidentiality ofcommunications agreed to by the parties.

The parties were entangled in a dispute over the fitness of gas tanks and agreed to privatemediation. Before the mediation commenced, the parties signed a standard mediation agreement, which included a clause stating thatanything that transpired during the mediation would be confidential and that no statement made or document produced in the mediationwould be subject to discovery, compellable as evidence, or admissible into evidence in any proceeding.

A dispute subsequently arose asto an offer that was made during the mediation. [26] The defendant, Union Carbide, then attempted to strike out certain allegations contained in Bombardier’s application toapprove a settlement on the basis that these allegations referred to events (a settlement) that took place during mediation.

While themotions judge struck certain of the allegations on the basis of the confidentiality clause, the Quebec Court of Appeal overturned themotions judge (2012 QCCA 1300) and the Supreme Court upheld the Court of Appeal’s decision in Bombardier. [27] The issue before the Supreme Court was whether a mediation contract, with an absolute confidentiality clause, could overridethe exception to the common law settlement privilege that applies where parties seek to prove the existence or scope of a settlement.Justice Wagner (as he then was) first reviewed common law settlement privilege, its purpose and scope, and exceptions to that privilege.He noted that one of the intervenors in Bombardier, Arbitration Place Inc., had suggested the Wigmore test be applied (at para 43), buthe concluded that, in the circumstances of agreed confidentiality, only the fourth criterion of Wigmore was relevant: [44] The intervenor Attorney General of British Columbia, on the other hand, suggests that the plain meaning of an unambiguousconfidentiality agreement should prevail, barring extreme circumstances.

As for the respondents, they say that courts should look beyondthe plain meaning to account for the wishes of the parties. I agree with these approaches. In principle, there is relatively little that candisplace the intent of the parties once it is clearly established. Only the fourth step of the Wigmore test – the balancing of interests – ispotentially relevant in this case.

In my view, the first three steps of the Wigmore test are redundant where parties have not only opted fora confidential dispute resolution process, but have also signed a confidentiality agreement. (Emphasis added) He then noted that settlement privilege and confidentiality clauses are different: “One is a rule of evidence, while the other is a bindingagreement; they do not afford the same protection, nor are the consequences for breaching them necessarily the same” (at para 45). [28] He concluded that parties may contract for further protection than that available at common law in the settlement context: [49] In my view, the inquiry in each case will begin with an

interpretation of the contract. It must be asked whether the confidentialityclause actually conflicts with settlement privilege or with the recognized exceptions to that privilege. Where parties contract for greaterconfidentiality protection than is available at common law, the will of the parties should presumptively be upheld absent such concernsas fraud or illegality. I have discussed reasons why parties might desire greater confidentiality protection, and allowing parties to freelycontract for such protection furthers the valuable public purpose of promoting settlement.

As Professor Green states [at 22], if a written confidentiality agreement exists, the parties are in a stronger position to argue that the court should exercise its discretion togrant a protective order assuring confidentiality because protecting the confidentiality of mediation statements furthers the expressedintentions of the parties as well as the public policy of encouraging extra-judicial settlements. (Emphasis added) [29] However, Wagner J. found that it was a different matter where parties contract out of the exception that applies where a partyseeks to prove the terms of settlement.

This was because failing to apply this exception “could frustrate the broader purpose ofpromoting settlements in that it might prevent parties from enforcing the terms of settlements they have negotiated” (at para 50). In sostating, he noted the following: “It is open to contracting parties to create their own rules with respect to confidentiality that entirelydisplace the common law settlement privilege”, which “furthers both freedom of contract and the likelihood of settlement …” (atpara 51).

Wagner J. also notes that “[w]here an agreement could have the effect of preventing the application of a recognized exceptionto settlement privilege, its terms must be clear” (at para 54). [30] Applying these principles, Wagner J. concluded the parties had not contracted out of the exception. The confidentiality clausedid not contain an express provision providing that they had renounced their right to prove the terms of the settlement. c. Class privilege and the Panel Report

[31] Narrowed down to its basics, SK Insurance has argued, essentially, that this Court should recognize a class privilege in thealternative dispute resolution context where a confidentiality clause exists. It has done so on the basis of the common law that existedprior to Bombardier, including Slavutych, and on the dicta in Bombardier itself. For the following reasons, I decline to recognize such aclass privilege and instead find that the Chambers judge was correct to apply the Wigmore criteria. [32] At the outset, I find it necessary to briefly address the nature of the Panel appeal process itself.

Before this Court, SKInsurance argues that the Panel appeal process is “unfortunately named” and that it is not an appeal process in a legal sense. Instead, itargues, the Panel appeal process is an alternative dispute resolution process whereby SK Insurance and customers, like Peterson, mayreach amicable settlements. [33] I agree with SK Insurance that the Panel appeal process is an alternative dispute resolution process in which SK Insuranceattempts to resolve disputes with customers outside of the courts.

It is a voluntary process to which customers may opt in and its findingsare not binding, in any final sense, on the parties. In this way, the Panel appeal process is somewhat similar to dispute advisory boards,which are described in Duncan W. Glaholt and Markus Rotterdam in The Law of ADR in Canada: An Introductory Guide (Markham,Ont: LexisNexis, 2011): “Dispute advisory boards resemble dispute review boards, but are generally established only once a dispute hasarisen.

Dispute advisory boards only give non-binding opinions on matters put before them by the parties” (at 42). [34] Yet, the Panel appeal process in this case is not collaborative and is instead adjudicative and adversarial in nature. Unlikesettlement discussions or mediations, the parties do not engage in “give and take” exchanges before the Panel because it is not anegotiation or a mediation. Instead, the parties make submissions before the Panel and the Panel then reviews the submissions andprovides its recommendations to the Board.

The recommendations are reviewed by senior management staff of SK Insurance beforebeing submitted to the Board. Significantly, unlike a dispute advisory board, as described above, the Panel’s recommendations areprovided to only one of the parties.

While the Panel appeal process is, in the broadest sense, an alternative dispute resolution forum, itstrue nature is that of an internal appeal structure in which the customer may make representations to the Panel and hope that the Panel’srecommendations encourage the Board to change its position. [35] As well, it is important to recognize that privilege is conceptually distinct from confidentiality.

The Law of Evidencesuccinctly states this concept: “Although confidentiality is the cornerstone for the protection of communications within particularrelationships, confidentiality alone is not sufficient to attract privilege” (citations omitted, at para 14.12). In Straka v Humber RiverRegional Hospital (2000), (ON CA), 137 OAC 316 (CA), Morden J.A. wrote the following: [59] It has been long established that confidentiality alone, no matter how earnestly desired and clearly expressed, does not make acommunication privileged from disclosure: Wigmore [1961] at §2286.

Something more than confidentiality must exist and thissomething more must satisfy the Wigmore conditions: Slavutych v. University of Alberta, (SCC), [1976] 1 S.C.R. 254; 3N.R. 587; R. v. Fosty and Gruenke, (SCC), [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man. R. (2d) 112; 6 W.A.C. 112, andSopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd Ed. (1999) at pp. 723–724. (Emphasis added) [36] This was explained by Sharpe J.A. in St.

Elizabeth Home Society v Hamilton (City), 2008 ONCA 182, 291 DLR (4th) 338, inthe context of a journalist–source claim, and I agree with his explanation: [23] To obtain controversial information, a journalist may have to promise confidentiality to his or her source. In exchange for giving theinformation, the confidential source gains the right to insist that the journalist maintain confidentiality.

However, a right ofconfidentiality, by itself, is not sufficient to protect against compelled disclosure should the confidential information be required in acourt of law or other legal proceeding. [24] In some situations of confidentiality – most notably communications between solicitor and client – the public interest in protectingthe integrity of the relationship is so strong that the common law provides for a blanket or class privilege that shields all confidentialinformation from disclosure.

However, for most relationships – doctor–patient, priest–penitent, journalist–informant – the interest inconfidentiality must be balanced against the interest in the proper administration of justice, and claims to privilege are resolved on acase-by-case basis. (Emphasis added) See also Canada (Solicitor-General) v Royal Commission (Health Records), (SCC), [1981] 2 SCR 494; Upham v You(1986), (NS CA), 73 NSR (2d) 73 (SC (App Div)); R v Fosty (1989), (MB CA), 55 Man R (2d) 289(CA) at paras 38–39, aff’d in Fosty (SCC); Canada (Attorney General) v Sander (1993), (BC CA), 114 DLR (4th)455 (BCCA), per Wood J.A. in concurring reasons. [37] Rights of confidentiality, on their own, are insufficient to create privilege.

The law does not recognize that a document orcommunication is privileged simply because one party represented, or the parties agreed, that it would be kept confidential. Instead,privilege only exists where the underlying relationship falls within a recognized class privilege or where, applying the Wigmore criteria,a court determines that privilege should apply.

For this reason, the Panel Report is not automatically privileged by reason of theConfidentiality Clause. [38] In saying this, I recognize that the Confidentiality Clause did not provide simply for confidentiality, but went further, statingthat the recommendations of the Board “constitute privileged information”. To my mind, however, the same principle applies: no matterhow clearly parties express or agree to confidentiality or privilege, unless a class privilege applies, the document or communication is notautomatically privileged.

Privilege must still be determined on a case-by-case basis, though, as will be discussed below, with significant

weight given to the parties’ agreement. [ 39 ] SK Insurance relies on the decision in Slavutych for the contrary view. It argues that Slavutych established that where there is an agreement to confer privilege with respect to a document, the document is privileged by reason of this contract and there is no need to rely on the Wigmore criteria. In my view, this argument misreads the findings in Slavutych . [ 40 ] In Slavutych , a professor at the University of Alberta provided his candid opinion about a colleague to a tenure committee after being advised his opinion would be treated confidentially.

An arbitration board then used this information against the professor as the basis for his own dismissal, finding he was guilty of a serious misdemeanour because of the language used in that opinion. The professor appealed, arguing that his opinion should have been kept strictly confidential. The question was whether the university could use the opinion as evidence in the dismissal proceeding. [ 41 ] Justice Spence, writing for the Supreme Court, applied the law of breach of confidence to find that, at equity, the university was not able to use information obtained in confidence against the professor.

This was because the university had instigated the communication in confidence and stressed its confidentiality, but then sought to use it against the professor as a basis for a charge of misconduct justifying dismissal.

Breach of confidence has not been argued in the present case and will not be considered further herein. [ 42 ] However, in obiter , Spence J. discussed the application of the Wigmore criteria to the opinion and found that, if the matter were being decided under the doctrine of privilege, the document should have been ruled inadmissible (at 260–261): On the other hand, if the matter be considered on the question of privilege, I am not of the same view. I address myself to the four fundamental conditions outlined by Wigmore and which I have quoted above.

As to number one, the communication did originate in a confidence, a confidence stressed in the very words of the form which the appellant was asked to complete and repeated and emphasized by the head of the department when he requested the appellant to complete the form. As to the second condition, certainly confidentiality was essential to the operation of a procedure whereby fellow members of the university staff were requested to give their opinions as to an application for such an important right as tenure.

These persons were working every day together and it would be simply impossible to have the statement made by one at the request of the university authorities in reference to the worth of another known either to him or to the balance of the staff. As to the third condition, surely it is in the interest of the university community that the relationship between colleagues must be fostered and that the proper procedures for granting tenure to members of the university staff must be furthered.

As to the fourth condition, all of the elements which I have just recited stress the desirability of the preservation of the confidential nature of the communication.

There is, of course, an interest in the operation of the proper procedures for dismissal and it might be said, although I do not think it can be properly said, that such interest would justify the breach of the confidentiality of the communication but I do not think that it can be said that this latter interest is any greater than the interest in the retention of its confidentiality and if the two interests were of equal weight surely the greater effect should be to support the confidentiality of a document given upon the firm agreement of both parties that it should remain confidential, indeed that it should be destroyed so soon as it had been read and perused, especially when the party who proposes the breach of that confidentiality, i.e., the University of Alberta, is the party who made the firm commitment that the confidentiality should be absolute. [ 43 ] In my view, Slavutych cannot be read so as to support SK Insurance’s argument that a document is presumptively privileged because the parties had agreed it would be confidential.

In fact, it stands for the opposite, at least insofar as privilege goes, because Spence J. did not find the opinion to be presumptively privileged. Instead, he turned to the Wigmore criteria and considered these in light of the parties’ agreement. As such, Slavutych cannot be relied upon to support SK Insurance’s argument on this point of class privilege. d. The Bombardier decision: General applicability [ 44 ] I then turn to SK Insurance’s argument respecting the applicability of Bombardier . SK Insurance argues the premise and rule from Bombardier should apply in all alternative dispute resolution contexts.

It states that where parties specifically enter into an alternative dispute resolution process to avoid litigation, and the parties clearly agree that any and all of the process should be privileged, the agreement should be respected unless there has been illegality or fraud. I cannot accept this argument. [ 45 ] The statements from Bombardier on which SK Insurance relies must be considered within the Supreme Court’s broader discussion of settlement privilege and the exceptions thereto.

SK Insurance relies on, among others, this statement: “Where parties contract for greater confidentiality protection than is available at common law, the will of the parties should presumptively be upheld absent such concerns as fraud or illegality” (at para 49). As even that statement makes clear, especially when read in conjunction with the sentence immediately preceding it, Bombardier was decided in the context of settlement privilege and whether parties could contract for greater protection than that afforded at common law.

It was informed by the priority placed on encouraging settlements in the justice system. This priority is demonstrated by the recognition of settlement privilege as a class privilege.

Its class privilege status “enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation” and it encourages settlements by promoting “honest and frank discussions between parties” (at para 31). [ 46 ] Further, the Supreme Court was careful to confine its dicta in Bombardier to the circumstances before it, namely, to the issue of whether parties could contract out of an exception to settlement privilege.

Justice Wagner clearly acknowledged the narrow scope of the decision: [55] I wish to emphasize that my analysis concerns one exception to the common law settlement privilege – the one that applies where a party seeks to prove the terms of a settlement . I have not discussed other exceptions, such as the one with respect to fraudulent or unlawful communications, as they are not at issue in this case. Nor will I consider whether the mediator could be compelled to testify in a situation such as this one.

The evidence before this Court is limited to the impugned paragraphs of the motion for homologation, so I will not address the appropriate legal threshold for permitting or compelling direct testimony by the mediator. I will leave that question for another day. (Emphasis added)

[ 47 ] It is clear to me that the rationale from Bombardier does not, and was not intended to, extend and apply to contexts other than settlement privilege. Bombardier was animated by the specific context in which it arose. Justice Wagner’s comments respecting contracting for greater privilege were made during his analysis of settlement privilege as compared to confidentiality in mediation agreements and his comments regarding freedom of contract were made in the context of settlement and the policy reasons for promoting settlement.

He clearly acknowledged that his analysis was limited to the specific issue before him. To date, it does not appear that these statements have been applied to confer privilege as a class whenever there is a confidentiality agreement or clause, and I decline to recognize such a class privilege in this case. e. Panel policy change [ 48 ] SK Insurance also relies on its policy change implemented subsequent to the decision in Cote as a reason why privilege should be presumptively recognized. Cote , decided in 2002, considered whether litigation or settlement privilege attached to Panel recommendations.

At that time, the Panel’s recommendations were not confidential and were instead generally provided to the customer and the Board. There was no equivalent to the Confidentiality Clause.

SK Insurance states, and the Chambers judge found, that it changed its practices and procedures following Cote so as to now require customers to sign the Confidentiality Clause before proceeding with the appeal process. [ 49 ] As with the Confidentiality Clause, while I agree that these changes are relevant as to whether there is privilege, I cannot agree that they operate so as to confer a presumptive class privilege on the Panel Report.

These changes are indicative of SK Insurance’s intentions and speak to whether case-by-case privilege should be recognized; they do not change the underlying relationship between SK Insurance and Peterson so as to bring it within a recognized class. [ 50 ] In my view, no class privilege applies to privilege the Panel Report. The relationship between SK Insurance and Peterson does not fall within a recognized class privilege.

Nor can the rulings in Bombardier or Slavutych be extended so as to presumptively create privilege in the alternative dispute resolution context established by the Panel appeal process by reason of a confidentiality agreement alone. For these reasons, the Chambers judge was correct to approach this matter as a claim of case-by-case privilege and to focus his analysis on the Wigmore criteria. B. Did the Chambers judge err in his application of the Wigmore criteria? [ 51 ] SK Insurance then argues, in the alternative, that the Chambers judge erred in his application of the Wigmore criteria.

More specifically, SK Insurance takes issue with the Chambers judge’s weighing of the considerations in the fourth criterion on two grounds: (

a) he failed to consider the Confidentiality Clause; and (

b) he erred in reaching his ultimate finding that the disclosure of the Panel Report would cause injury to SK Insurance greater than the benefit gained by the correct disposal of the litigation. [ 52 ] The Chambers judge approached the Wigmore criteria by determining that, despite his other conclusions respecting Bombardier , the Supreme Court’s statement at paragraph 44 of that decision had broad application (repeated here for clarity): [44] The intervenor Attorney General of British Columbia, on the other hand, suggests that the plain meaning of an unambiguous confidentiality agreement should prevail, barring extreme circumstances.

As for the respondents, they say that courts should look beyond the plain meaning to account for the wishes of the parties. I agree with these approaches. In principle, there is relatively little that can displace the intent of the parties once it is clearly established. Only the fourth step of the Wigmore test – the balancing of interests – is potentially relevant in this case. In my view, the first three steps of the Wigmore test are redundant where parties have not only opted for a confidential dispute resolution process, but have also signed a confidentiality agreement.

Based on this, the Chambers judge found that the first three Wigmore criteria did not need to be addressed and focused only on the fourth. I agree with this approach. [ 53 ] Thereafter, the focus of his analysis was necessarily on whether SK Insurance had demonstrated that the fourth Wigmore criterion had been satisfied. At this point, it is necessary to consider the fourth Wigmore criterion and the analysis thereunder in further detail.

I repeat this criterion again for convenience: “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” ( Evidence at Trials at para 2285). [ 54 ] The onus was on SK Insurance, the party claiming privilege, to show the fourth criterion had been established: namely, the harm was greater to it. This was explained in National Post , where it was argued that the onus should switch to the party seeking disclosure to show why disclosure should be ordered at the fourth criterion.

This argument was rejected: [60] … This three steps forward one step backward argument with respect to onus is unpersuasive because it presupposes that a privilege arises after the third step and is then subject to rebuttal by the opposing party at the fourth step. However, this is not the case. Until the media have met all four Wigmore criteria no journalistic source privilege arises. The evidence is presumptively compellable and admissible. It is the media that advances the proposition that the public interest in protecting its secret source outweighs the public interest in the criminal investigation.

The burden of persuasion therefore lies on the media. That said, I expect that onus will rarely play a pivotal role at the fourth step, where “[t]he exercise is essentially one of common sense and good judgment” ( Ryan , at para. 32 ). (Emphasis in original)

[55] When considering the fourth criterion, a court will “weigh up the evidence on both sides (supplemented by judicial notice,common sense, good judgment …)” (National Post at para 64), in order to “balance one alternative against the other” (Ryan at para 32):see also 1654776 Ontario Ltd. v Stewart, 2013 ONCA 184 at para 97, 364 DLR (4th) 302 (leave to appeal denied, (SCC)).

While in National Post appropriate regard had to be paid to the special position of the media, in the circumstances of this case,the Chambers judge had to give appropriate regard to the Confidentiality Clause. [56] In the present case, the Chambers judge approached the fourth criterion by asking whether SK Insurance had established that“the injury caused by disclosure of the communications would be greater than the benefit gained for the correct disposal of the litigation”(Chambers Decision at para 39). He reviewed a number of SK Insurance’s arguments (at para 40): (

a) that the Panel process “bolsters the insurance adjusting process” and thereby “helps avoid needless litigation”; (

b) that “without confidentiality and privilege attached to the Panel’s recommendation”, it would be unable “to offer theprovincial appeal process because Panel members would be less likely to participate with candor”; (

c) that the Panel process would, “‘in its entirety, be put in jeopardy should the appeal Panel recommendation to the Board beheld producible’ (para. 32)” (quoting SK Insurance’s brief); and (

d) that there are limited “benefits for litigation gained by ordering the Report’s production … because it contains littleinformation and thus is of ‘little or no probative value to the court’ (para. 31)”.

He also noted, “Although not argued by [SK Insurance], Bombardier demonstrates that concept of freedom of contract should be a factorthat also significantly favours confidentiality” (at para 40). [57] The Chambers judge then spoke to Peterson’s argument that case law suggests the public interest is best served by confiningthe cases where relevant material may be withheld and concluded the following: [42] I am not persuaded that the disclosure of the Report would cause injury to the respondent [SK Insurance] greater than the benefitgained by the correct disposal of the litigation.

In this regard, I find support from Smith J.’s decision in Cote. The reasons given by therespondent do not trump the applicant’s [Peterson’s] right to have disclosure under the Rules. The respondents perceived internaldifficulties resulting from disclosure of the Report are not determinative when balanced with the need for a full adjudication. The issueof probative weight and value can be left to the trial court. Finally, while the applicant agreed to the terms of the appeal, nonetheless thematter turned controversial and has now found itself in a lawsuit.

The so-called confidentiality agreement should not, in this particularinstance, act as a bar to the full evidentiary exploration of this controversy. Therefore, upon application of the fourth Wigmore factor, Iam persuaded the Report should be disclosed. [58] I cannot say that the Chambers judge erred in his approach or in his conclusion. While his analysis could have been morerobust, his reasons must be read in light of the evidence provided and the arguments made by the parties.

In fact, the Chambers judgewent beyond the arguments of the parties in considering the fourth criterion. [59] I say this because, as noted by the Chambers judge, SK Insurance did not argue that the Confidentiality Clause was a relevantand significant factor at this stage. Indeed, SK Insurance’s written argument before the Chambers judge on this point was focused on thenature of the Panel Report and its probative value.

The Chambers judge appropriately looked beyond the parties’ arguments and, relyingon Bombardier, found that “freedom of contract should be a factor that also significantly favours confidentiality” (at para 40). While hedid not refer to this factor in paragraph 42 of his decision, he clearly recognized that the Confidentiality Clause’s existence stronglysupported non-production (at para 40) and he must be taken as having factored this into his analysis. It was despite the ConfidentialityClause that he remained unpersuaded that the injury to SK Insurance outweighed the benefit of production.

On this basis, I cannot findthat the Chambers judge failed to consider the Confidentiality Clause. [60] Although the Chambers judge did not engage in a detailed examination of the purpose and structure of the Panel process, thefollowing aspects are relevant. It must be kept in mind that the Confidentiality Clause is not a typical agreement negotiated by parties onequal footing. It is a standard form contract that customers must sign if they wish to access the Panel appeal process.

Agreeing to theConfidentiality Clause, while voluntary, is the only way to access the alternative dispute resolution forum created by SK Insurance. ThePanel then generates recommendations that it provides only to the Board of SK Insurance – and not to customers. In these ways, theConfidentiality Clause reflects the unequal bargaining power between SK Insurance and its customers: where the Board decides against acustomer, the Panel appeal process benefits only SK Insurance.

As a result, I cannot say that the existence of, and the agreement to, theConfidentiality Clause must be determinative of an analysis of the fourth Wigmore criterion. [61] Nor do I accept SK Insurance’s argument that the Chambers judge erred in his ultimate conclusion. Absent an extricablequestion of law, the Chambers judge’s decision on this point concerns a question of mixed fact and law and is entitled to deference. SKInsurance has not pointed to an extricable question of law that would justify correctness review.

The question, therefore, is whether theChambers judge made a palpable and overriding error. [62] SK Insurance bore the onus of demonstrating that, when balancing the alternatives, injury to it outweighed the benefit ofproduction. In reaching his decision, the Chambers judge reviewed SK Insurance’s evidence and its arguments, as well as theBombardier line of reasoning he identified and the evidence and arguments of Peterson, and found himself unpersuaded.

His reasonsdemonstrate he was clearly alive to the evidence, arguments, and the existence and effect of the Confidentiality Clause, and that it was inlight of these considerations that he concluded he was not satisfied that the injury of production would exceed its benefit. Such a findingwas open to the Chambers judge and I cannot see an error justifying intervention. What SK Insurance asks is for this Court to reweighthe evidence in relation to the forth Wigmore criterion to reach a different conclusion than the Chambers judge. This, we cannot do. Iwould therefore dismiss this ground of appeal.

[ 63 ] Lastly, I would note that the Chambers judge did not consider whether partial disclosure and production would be a viable alternative, but this is not an error justifying intervention in the circumstances. Generally speaking, partial disclosure, with editing by a court, is often appropriate where a privacy interest is compelling, as is the circumstance here: see, for example, Ryan at para 33 . Peterson raised partial disclosure and production as an option before the Chambers judge, stating the following in its brief of law: “The names of the Panel members etc. may be redacted.

This will be a complete answer to the respondent’s concerns” (at para 34). However, the possibility of redacted disclosure and production was not pursued by SK Insurance as an alternative. It, instead, took the position that Peterson was not entitled to disclosure in any form. While the Chambers judge might have considered partial disclosure and production, his failure to do so was not an error in these circumstances because of the position taken by SK Insurance, and because the Panel Report was not provided to him for review.

I make no comment as to whether partial disclosure and production would have been preferred. VI. Conclusion [ 64 ] I would dismiss the appeal with costs to Peterson in the usual manner. “Whitmore J.A.” Whitmore J.A. I concur. “Schwann J.A.” Schwann J.A. Jackson J.A. (in dissent) I. Introduction [ 65 ] I have had the pleasure of reading my colleagues’ reasons, but I respectfully disagree with them. In my opinion, there are two pathways that lead to the conclusion that the Provincial Appeal Panel’s recommendation [Panel’s Recommendation] should not be produced.

First, as a matter of contract law, the parties’ agreement precludes production of the document. Second, on my reading of the applicable law, the Chambers judge committed a reversible error in his application of the Wigmore criteria to the circumstances. II. Background [ 66 ] I will briefly review the facts in order to place my reasons in context. The parties are Rick Peterson Farms Ltd. [Peterson Farms] and Saskatchewan Crop Insurance Corporation [SK Insurance]. Peterson Farms describes itself, in its statement of claim, as “a body corporate” being “in the business of farming”.

SK Insurance is a Crown corporation operating under its own statute: The Saskatchewan Crop Insurance Corporation Act , SS 2012, c S-12.1 , s 5. [ 67 ] Peterson Farms contracted with SK Insurance for insurance to cover any loss resulting from an inability to seed crops due to excessive spring moisture.

Following spring seeding in 2013, Peterson Farms made an unseeded acreage claim with respect to 13,675 acres of land (approximately 21.4 square miles), which an adjuster, employed by SK Insurance, subsequently denied. [ 68 ] In denying the claim, SK Insurance also advised Peterson Farms that it was entitled to have the adjuster’s decision reviewed by a regional Management Group.

Peterson Farms availed itself of this avenue, but with no change in the result. [ 69 ] SK Insurance then advised Peterson Farms that it had a further right of appeal to the Board of Directors of SK Insurance [Board], subject to certain conditions. It described the voluntary process as involving the appearance of Peterson Farms and a representative of the regional Management Group before the Provincial Appeal Panel [Panel].

The Panel, in turn, would make a recommendation to the Board. [ 70 ] In order to appeal to the Board in this manner, Peterson Farms was required to agree to “Appeal Panel Limitations and Restrictions” conditions.

The process required Peterson Farms to agree that the Panel’s Recommendation would “constitute privileged information”, which would not be disclosed to it: I expressly acknowledge and agree that the Appeal Panel serves only as an advisory body to the Board of Directors of SCIC [SK Insurance] and as such, any conclusions reached by the Appeal Panel represent only recommendations that may, or may not, be accepted by the Board of Directors of SCIC .

I further acknowledge that due to the possibility of further litigation, the recommendations of the Appeal Panel to the Board of Directors of SCIC constitute privileged information and will not be disclosed by SCIC to me or to any of my representatives . I understand however that the final decision of the Board of Directors (after considering the Appeal Panel recommendations) will be communicated to me in a timely manner.

I further acknowledge and agree that participation in SCIC’s Appeal Panel procedure is entirely voluntary and shall not abrogate, eliminate, reduce, waive or compromise in any way whatsoever any legal rights that may be available to myself or to SCIC to pursue all matters in issue utilizing any and all legal remedies available to either party within the courts of the Province of Saskatchewan.

(Emphasis added) [ 71 ] As the time for his review approached, SK Insurance wrote two letters to Peterson Farms.

In the first letter, SK Insurance attached a document advising of the following: • The appeal panel is an advisory body to the Saskatchewan Crop Insurance Corporation Board of Directors, meaning any decisions made by the appeal panel are recommendations only. • Appeal panel decisions are not binding on the board of directors; the panel’s decisions may or may not be accepted by the board . • Because there are still legal avenues open to you to continue the appeal process after the board of directors has made their decision, appeal panel recommendations to the board are “privileged”, or confidential .

Crop Insurance cannot release this information to you but you will be notified of the board’s final decision as soon as possible. • An application to the Saskatchewan Crop Insurance Corporation Provincial Appeal Panel is a voluntary act on your part and does not nullify, waive or compromise your legal rights or the legal rights of the corporation .

Both you and the corporation may use all legal avenues available under Saskatchewan’s provincial court system. • During the appeal, you may represent yourself or be represented by a third party knowledgeable about your complaint. • As the hearing is an informal discussion of the issue between you and the corporation, electronic recording of the hearing is not permitted. (Emphasis added) [ 72 ] In the second letter, SK Crop Insurance provided further information regarding the hearing itself: During the hearing, Saskatchewan Crop Insurance representatives will present their information pertaining to your appeal.

After Crop Insurance’s presentation, you will be asked to make your presentation in reply. Enclosed, please find a copy of the information Crop Insurance will present to the panel. … After both presentations are made, the appeal panel will further question you and Crop Insurance staff and you will have an opportunity to ask any questions you may have. Based on the presentations and discussion, the appeal panel will make a recommendation on your appeal to the board of directors.

The Saskatchewan Crop Insurance Corporation Provincial Appeal Panel was established to provide fair and efficient resolution to customer issues. The panel is an independent advisory committee of producers appointed by the corporation’s board of directors to consider and make recommendations on individual customer concerns. The board of directors is not bound by any recommendations made and you will be advised of the board’s decision approximately six to eight weeks after your hearing date . (Emphasis added) [ 73 ] The meeting with the Panel took place on April 10, 2014.

On May 26, 2014, the Board advised Peterson Farms that its appeal had been denied. In her letter to Peterson Farms, the chair of the Board advised as follows: The Board of Directors reviewed the Provincial Appeal Panel’s report. The information presented indicates the area became very wet at the end of May and continued to remain wet through June; however, there was still opportunity to seed as almost all of the acres were seeded in the area. The Board concluded [SK Insurance] acted within the program’s policy and procedures.

As a result, the Board has decided to deny your appeal. [ 74 ] On September 30, 2014, Peterson Farms filed a statement of claim in the Court of Queen’s Bench against SK Insurance. Peterson Farms claims approximately $1.3 million under its insurance policy with SK Insurance. [ 75 ] On March 7, 2017, counsel for Peterson Farms requested production of the Panel’s Recommendation. SK Insurance refused to produce the Panel’s Recommendation, claiming privilege according to the terms of its agreement. Peterson Farms applied to the Court of Queen’s Bench Chambers pursuant to Rule 5-12(2)(

a) of The Queen’s Bench Rules for production of the “Recommendation by the Provincial Appeal Panel”. [ 76 ] In the Court of Queen’s Bench, a vice president of SK Insurance filed an affidavit and placed before the Court an exhibit entitled “Provincial Appeal Panel Operating Structure and Terms of Reference” [Terms of Reference]. According to this exhibit, the appeal process does not have its foundation in legislation. Rather, the Panel’s mandate and the Terms of Reference are established by the Board. Appointments to the Panel are made by the Board and appointees are paid a per diem.

SK Insurance provides the Panel with staff and legal advice. The Panel’s role is described as follows: • Decisions of the panel are determined using the “Guiding Principles” and pursuant to the respective Acts and Regulations, Policy and Procedures involved in the appeal. o The panel may recommend to SCIC [SK Insurance] management, changes to procedures in appropriate circumstances, e.g.,

inequities between customers. • The panel may recommend to the Board of Directors amendments to Legislation or Policy appropriate circumstances, e.g., there is no policy relevant to the issue before the panel or policy causes hardship or grievance. • All customers are encouraged to attend the appeal hearing in person. o Telephone attendance by conference phone may be facilitated but personal appearance is preferred. • The Appeal Panel may provide advice to and act in any other capacity as directed by the Board of Directors and SCIC on any matters related to crop insurance. • The appeal panel coordinator and SCIC representative(

s) will attend in person. … • The panel shall act in an advisory capacity on any matters relating to Crop Insurance as requested by Board of Directors. [ 77 ] The Terms of Reference of the Panel are described as follows: Terms of Reference • The appeal panel adjudicates the appeal based on the written information and/or oral testimony provided or given by staff and the customer and/or customer’s representative together with any other relevant source(

s) of information requested or presented. o The panel’s decision shall be based on the “Guiding Principles” and the relevant law, policies and procedures. • Whenever necessary, the panel may request additional information or testimony/evidence from experts, specialists or other knowledgeable persons and ensuring that both parties have had an adequate opportunity to reply. • The appeal panel may adjourn a hearing or postpone a decision to allow additional information to be provided by staff or the customer. o Any additional information provided to the panel outside of the hearing shall be exchanged between the parties and each allowed an opportunity to respond if necessary. • The appeal panel shall prepare a written recommendation(

s) based on the information presented and outline reasons for the decision . o Senior management staff review the recommendation(

s) prior to being forwarded to the Board of Directors. o Management may meet with the panel to discuss the recommendation(

s) and review any proposed changes to current legislation, policy or practices . • The purpose of the meeting is to discuss issues with staff and ensure more effective use of time by the Board of Directors on appeals and any issues arising out of the appeals. o Without limiting the generality of the foregoing, the chair and/or vice-chairperson(

s) and staff shall: o Determine whether a common or co-operative approach regarding proposed amendments to legislation or policy may be presented to the Board of Directors; and o Discuss more fully the panel’s reasons for its decision. • The panel’s responsibility is to decide the appeal and the meeting with staff shall be used for issue management and not a rehearing of the appeal. o The panel’s recommendation is that of the entire panel [and] shall not be varied or changed by the chair and/or vice-chairperson(

s) without consent of the other members. o Where new or fresh information is introduced that may affect the decision, the panel shall decide in camera whether to reconvene the hearing and allow the customer an opportunity to respond. o Fairness to both parties shall always be paramount but consideration shall be given to the availability of the new information at the date of the original appeal and the reason(

s) why it was not presented at that time. • All appeal recommendations that are agreed to between the panel and staff shall be concisely summarized and presented to the Board of Directors for a decision. o Copies of the full recommendation are provided to a Board member. o Any recommendations that are not agreed to should be presented in the panel’s original reasons format to the Board of Directors

for a decision. • The panel may recommend changes to policy and/or legislative amendments that arise as a result of an appeal. o Wherever possible the panel and senior management shall make every effort to present a joint or co-operative recommendation for policy and/or legislative amendments to the Board for consideration. o In those circumstances where there is no agreement, the panel may include its comments as not forming part of the decision but for discussion purposes only to the Board of Directors. • The customer shall be advised in writing by the Chair of the Board of Directors of the decision in the appeal together with the reasons for the decision. o The customer shall be advised that the Board’s decision in the appeal is final and that any further action must be through other avenues. • A copy of the Appeal Panel’s recommendation to the Board of Directors shall be provided to SCIC for information and training purposes, but it shall not be provided to the customer as part of the appeal process . • The Appeal Panel’s recommendations are considered privileged information to the Board of Directors and are not to be disclosed to the customer . (Emphasis added) III. the issues [ 78 ] In its brief of law filed with the Court of Queen’s Bench, SK Insurance submitted that the resolution of the matter turned on three issues: 14.

Is it open to parties to a dispute to create their own rules with respect to privilege and confidentiality such that they entirely replace the common law rules with respect to confidentiality and privilege? 15. If so, have the parties clearly and expressly agreed that the recommendations of the Provincial Appeal Panel shall remain confidential and privileged? 16.

Do the common law rules with respect to privilege and confidentiality, nevertheless establish a privilege against the disclosure of the Provincial Appeal Panel’s recommendations? [ 79 ] In this Court, SK Insurance puts forward the same issues, but collapses the first and second into one issue. In my view, these issues are best expressed in this way: (

a) As a matter of contract law, can parties to a dispute agree that any aspect of an alternative dispute process will be privileged? (

b) Did the Chambers judge make a reversible error when he concluded, after considering the Wigmore criteria, that the Panel’s Recommendation is not privileged? [ 80 ] Before beginning my analysis of these issues, it should be noted that the standard of review with respect to the first question is correctness: Housen v Nikolaisen , 2002 SCC 33 at para 8 , [2002] 2 SCR 235; and to the second question is palpable and overriding error: Redhead Equipment v Canada (Attorney General) , 2016 SKCA 115 at paras 21 and 24 , 402 DLR (4th) 649. IV. Analysis A.

Contracting for Privilege [ 81 ] SK Insurance’s position before the Court of Queen’s Bench was guided almost exclusively by the following paragraphs from Union Carbide Canada Inc. v Bombardier Inc. , 2014 SCC 35 , [2014] 1 SCR 800 [ Bombardier ]: [49] In my view, the inquiry in each case will begin with an

interpretation of the contract. It must be asked whether the confidentiality clause actually conflicts with settlement privilege or with the recognized exceptions to that privilege. Where parties contract for greater confidentiality protection than is available at common law, the will of the parties should presumptively be upheld absent such concerns as fraud or illegality . I have discussed reasons why parties might desire greater confidentiality protection, and allowing parties to freely contract for such protection furthers the valuable public purpose of promoting settlement .

As Professor Green states [at 22], if a written confidentiality agreement exists, the parties are in a stronger position to argue that the court should exercise its discretion to grant a protective order assuring confidentiality because protecting the confidentiality of mediation statements furthers the expressed intentions of the parties as well as the public policy of encouraging extra-judicial settlements.

… [51] In my respectful opinion, the Court of Appeal did not devote adequate attention in its analysis to freedom of contract. It is open to contracting parties to create their own rules with respect to confidentiality that entirely displace the common law settlement privilege. This furthers both freedom of contract and the likelihood of settlement, two important public purposes . However, the mere fact of signing a mediation agreement that contains a confidentiality clause does not automatically displace the privilege and the exceptions to it. As I mentioned above, these protections do not have the same scope.

For instance, settlement privilege applies to all communications that lead up to a settlement, even after a mediation session has concluded. It cannot be argued that parties who agree to confidentiality in respect of a mediation session thereby deprive themselves of the application of settlement privilege after the conclusion of the mediation session.

The protection afforded by the privilege does not evaporate the moment the parties contract for confidentiality with respect to the mediation process, unless that is the contract’s intended effect . (Emphasis added) [ 82 ] From this, SK Insurance argued the following in its brief of law to the Court of Queen’s Bench Chambers judge: “It is submitted that the agreement is clear, unambiguous, and further that respecting the agreement honours all of the public policy objectives set out in Bombardier …” (at para 24 ). [ 83 ] The Chambers judge correctly found that the parties had agreed that the Panel’s Recommendation would be privileged ( Peterson v Saskatchewan Crop Insurance Corporation , 2017 SKQB 215 , 70 CCLI (5th) 296 [ Chambers Decision ]): [24] The applicant agreed to a clause that expressly stated “I further acknowledge … the recommendations of the Appeal Panel … constitute privileged information and will not be disclosed by the SCIC [SK Insurance] …”.

On a plain reading of the confidentiality clause, such agreement was unqualified and was not contingent on litigation. It is therefore clear that the respondent and the applicant agreed the Report would be privileged. [ 84 ] However, the Chambers judge did not give effect to the parties’ agreement.

Instead, he interpreted SK Insurance’s argument as asking for an expansion of settlement privilege to include a new form of privilege: [34] I find Bombardier establishes that confidentiality clauses in mediation agreements that purport to override a specific exception to settlement privilege are presumed to do so successfully. In my view, this point cannot be generalized outside the mediation/settlement context, as the respondent suggests, because the factors supporting this conclusion would be absent in other contexts.

This limited reading of Bombardier is further supported by the fact that case has apparently never been applied outside the mediation context. [35] The respondent raises many arguments for why the Report should be privileged but does not directly suggest its purpose is to promote settlement (respondent’s brief, paras. 25–26, 31–32). The confidentiality clause in the case at bar facilitates insurance appeal hearings, not mediation or settlement discussions.

In light of this, the confidentiality clause in the case at bar is distinguishable from that in Bombardier . [ 85 ] In my respectful view, I interpret SK Insurance’s argument differently. I believe SK Insurance to be saying that Peterson Farms had entered into a clear and unequivocal agreement that the Panel’s Recommendation would be privileged and it should be bound by the promise contained in its agreement. In doing so, SK Insurance found support in Bombardier , not from its ratio, or from its application of the law of settlement privilege, but by virtue of the dicta contained in the paragraphs quoted above.

In other words, the issue is not about the law of privilege or, at least, not exclusively about the law of privilege, but concerns the law of contract. [ 86 ] In this Court, SK Insurance expresses its argument, in its factum, in a similar way: 36. It is respectfully submitted the basis and premise underlying the decision in Bombardier is that parties to a dispute can contract for greater privilege and confidentiality than is afforded by the common law rules of privilege and contract.

This underlying legal principle, accepted and acknowledged by the Supreme Court of Canada ( Bombardier at para 49 ), was the basis for a further consideration as to whether or not the established principle can further be used to defeat the common law exceptions to privilege, or even common law privilege itself ( Bombardier at paras 50–54 ). 37. It is submitted the premise and rule should apply in all alternative dispute resolution contexts.

When the parties specifically enter an alternative dispute resolution process to avoid litigation, and the parties clearly agree that any or all of the process be privileged, short of illegality or fraud, the agreement should be respected. [ 87 ] I agree with SK Insurance. I interpret Bombardier as holding that parties to a dispute can contract for a greater privilege than the law allows in much the same way as parties, by way of contract, agree to a different form of dispute resolution when they insert an arbitration clause into a contract.

If individuals can forego access to the courts completely, on what basis can the courts hold, as a matter of law, that they cannot agree to expand the blanket of privilege, particularly in the context that this appeal presents? [ 88 ] Like any contract, a contract for greater privilege may not be enforceable. All of the usual equitable doctrines apply. Such a contract cannot be executed for fraudulent or illegal purposes. For example, it cannot hide evidence of crime. A party may plead non est factum or that no consideration exists for the contract, and so on.

Any of these principles, and others, might lead a court to conclude that the contract is not effective in overcoming the common law principle of privilege, but none of that has been suggested here. Indeed, Peterson Farms has not said it does not have an agreement or that the agreement is not valid. [ 89 ] Peterson Farms agreed that the Panel’s Recommendation would be privileged and it received something in return for its agreement. By agreeing, Peterson Farms obtained a low-cost way to plead its case in a review context to the Board. Peterson Farms

should not now be able to say it should have access to the Panel’s Recommendation arising from that process. In the circumstances of this case, as soon as the Chambers judge found a clear agreement that the Panel’s Recommendation to the Board would be privileged, he should have given effect to it. [ 90 ] Accordingly, I conclude that the parties to a dispute can contract for a greater expansion of the law of privilege and agree that communications, at least in the alternative dispute context, will be privileged. In my respectful view, the Chambers judge erred in law by deciding otherwise. B.

Application of the Wigmore Criteria [ 91 ] The Supreme Court’s most recent confirmation of the Wigmore criteria is contained in Lizotte v Aviva Insurance Co. of Canada, 2016 SCC 52 , [2016] 2 SCR 521 [ Lizotte ]: [32] … On the other hand, “[t]he scope of [a] case-by-case privilege”, as the name suggests, “will depend, as does its very existence, on a case-by-case analysis, and may be total or partial” ( National Post , at para. 52 ).

The four “Wigmore criteria”, the last of which is a balancing of the interests at stake, are applied: [53] The “Wigmore criteria” consist of four elements which may be expressed for present purposes as follows. First, the communication must originate in a confidence that the identity of the informant will not be disclosed. Second, the confidence must be essential to the relationship in which the communication arises.

Third, the relationship must be one which should be “sedulously fostered” in the public good (“Sedulous[ly]” being defined in the New Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007), vol. 2, at p. 2755, as “diligent[ly] … deliberately and consciously”). Finally, if all of these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. … ... [58] The fourth Wigmore criterion does most of the work.

Having established the value to the public of the relationship in question, the court must weigh against its protection any countervailing public interest such as the investigation of a particular crime (or national security, or public safety or some other public good). [ 92 ] SK Insurance’s alternative argument in the Court of Queen’s Bench was that the application of the Wigmore criteria would lead to the same result: the Panel’s Recommendation is privileged. They asserted that the first three Wigmore criteria were easily met.

The Chambers judge agreed ( Chambers Decision ): [39] According to Bombardier at para 44 , the first three Wigmore factors are redundant where parties have opted for confidential proceedings and have signed a confidentiality agreement. Unlike other aspects of the case, I find this rule operates outside the settlement/mediation context.

Therefore, the operative legal question is: Has the respondent established that the injury caused by disclosure of the communications would be greater than the benefit gained for the correct disposal of the litigation? [ 93 ] The Chambers judge then considered whether he was satisfied that the injury caused by disclosure of the Panel’s Recommendation would be greater than the benefit gained for the correct disposal of the litigation. These are his reasons for finding that the greater benefit could be gained by the correct disposal of the litigation: [40] On this point, the respondent raises a number of arguments.

First, it suggests the Provincial Appeal Process bolsters the insurance adjusting process and in doing so helps avoid needless litigation (respondent’s brief, para. 25). It states that without confidentiality and privilege attached to the Panel’s recommendations, the respondent would not be able to offer the Provincial Appeal process because panel members would be less likely to participate with candor (respondent’s brief, para. 26). It submits that the process “in its entirety [would] be put in jeopardy should the Appeal Panel recommendation to the Board be held producible” (para. 32).

Furthermore, it submits the benefits for litigation gained by ordering the Report’s production would be limited because it contains little information and thus is of “little or no probative value to the court” (para. 31). Although not argued by the respondent, Bombardier demonstrates that concept of freedom of contract should be a factor that also significantly favours confidentiality ( Bombardier , para 51 ). … [42] I am not persuaded that the disclosure of the Report would cause injury to the respondent [SK Insurance] greater than the benefit gained by the correct disposal of the litigation.

In this regard, I find support from Smith J.’s decision in Cote . The reasons given by the respondent do not trump the applicant’s [Peterson’s] right to have disclosure under the Rules. The respondents perceived internal difficulties resulting from disclosure of the Report are not determinative when balanced with the need for a full adjudication. The issue of probative weight and value can be left to the trial court. Finally, while the applicant agreed to the terms of the appeal, nonetheless the matter turned controversial and has now found itself in a lawsuit.

The so-called confidentiality agreement should not, in this particular instance, act as a bar to the full evidentiary exploration of this controversy. Therefore, upon application of the fourth Wigmore factor, I am persuaded the Report should be disclosed. [ 94 ] While I recognize that the decision of the Chambers judge is entitled to deference, I would find that he made a palpable and overriding error in his application of the law to the facts and set aside his conclusion.

In my respectful view, he has not given effect to the parties’ agreement nor has he recognized the significant element of access to justice that underpins that agreement. I will expand on each of the following points: (

a) freedom of contract; and (

b) access to justice.

a. Freedom of Contract [95] In his reasons, the Chambers judge states the following: “Although not argued by the respondent, Bombardier demonstratesthat concept of freedom of contract should be a factor that also significantly favours confidentiality” (at para 40). SK Insurance did notrely on “freedom of contract”. I am not sure what he means by this. In its brief of law to the Court of Queen’s Bench, SK Insurance madethe point that, without the agreement, it would be difficult to prove that the process arose in a confidential context; but, with theagreement of confidentiality, the first three Wigmore criteria are met. I do not think that this means S

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