On October 28, 2016, the Ontario Energy Board (OEB) issued its amended Practice Direction on Settlement Conferences to provide more detail about the privileged and confidential status of information exchanged during an OEB-convened Settlement Conference. The updates to the Practice Direction on Settlement Conferences appear to have been prompted, at least in part, by OEB decisions in 2015 (described in an earlier post) that rejected two Settlement Proposals because the confidentiality wording in those agreements was different from the then-current version of the Practice Direction on Settlement Conferences.
As described in the OEB’s cover letter, the current updates to the Practice Direction on Settlement Conferences make clear that, except in very limited circumstances, all information, data, documents, offers, admissions and similar exchanges during a Settlement Conference are “strictly confidential, privileged and without prejudice.” The only time when such exchanges may be admissible in an OEB proceeding is where the settlement information is necessary to resolve a dispute over the interpretation of a Settlement Proposal. Even then, only the specific settlement information required for the interpretation exercise will be admissible, and it will be treated as confidential by the OEB.
The updates to the Practice Direction on Settlement Conferences also provide more detail about the confidentiality obligations of Settlement Conference participants. Essentially, each participant must keep all settlement information (including documents, offers, negotiations, etc.) confidential, except where the participant has engaged a non-participant to assist or where the participant must seek instructions from a non-participant. In those instances, the participant may share such settlement information as is necessary to obtain the required assistance or instructions, but must ensure that the recipient of the information keeps it confidential. Additionally, the participant must maintain a list of all non-participants with whom settlement information has been shared along with a notation that such persons have been specifically informed of the confidentiality obligations associated with the settlement information. The OEB can require that this list be filed.
The updated Practice Direction on Settlement Conferences is effective immediately.