Can You Use a Transcript From a Settlement Conference as Evidence?
Written on behalf of Shariff & Associates
The Family Law Rules provide three types of conferences that may occur during a family law case: case conferences, settlement conferences, and trial management conferences. A transcript may be produced during the conference, which serves as a record of the proceedings. Nevertheless, parties expect privacy and confidentiality, encouraging open discussion. As such, there is no automatic right to a conference transcript. But are there circumstances when the transcript can be released, and can it ever be used in a subsequent trial?
There is no Automatic Right to a Transcript
Rule 17(23) of the Family Law Rules addresses the confidentiality of settlement conferences. The rule states that:
No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,
- an agreement reached at a settlement conference; or
- an order.
In Bordynuik v. Bordynuik the judge explained that in a conference setting, participants are encouraged to talk openly and frankly with the expectation that their comments will not go outside of that setting. The judge reasoned that not approaching a conference from that viewpoint would inhibit and negatively impact those discussions.
Likewise, in Cammarata v. Murphy, the judge explained that there is no automatic right to a transcript of a settlement conference and that the justice-involved acts as a “gatekeeper” to “ensure that information is not released, except in extraordinary circumstances”. Justice Scott indicated what might constitute extraordinary circumstances justifying the release of information. This might include a judge learning at a conference that a child was at risk and could warrant releasing the information to the Children’s Aid Society or the police. Another example was if a threat was directed at someone at a conference that could impact the person’s health or safety. Other examples are possible, with the judge indicating that when the “interests of justice and especially when the safety of a person may be impacted, there will be times that the wall of silence needs to be collapsed.” However, in this instance, Justice Scott cautioned that if courts were not consistent in generally maintaining the principle of confidentiality of conferences, then they were likely to “become less open and less likely to promote resolution.”
Court Emphasizes Importance of Confidentiality at Conferences
In Kumaraswamy v. Ganesan, the respondent brought a motion requesting a range of relief, including an order to provide transcripts and supplementary records from the settlement conferences. The respondent had several reasons for requesting the transcripts. First, he wished to review the transcripts to ensure his understanding of what was discussed and agreed upon was accurate. He also claimed that obtaining transcripts would be helpful in “bridging gaps in understanding” as a non-native English speaker and that the transcripts would help overcome the language barriers. And finally, he wished to have the transcripts for reference and to refer to in a future family matter.
The judge found that Justice Scott’s analysis in Cammarata was consistent with earlier treatment of the confidentiality of settlement conferences. The issue was considered in the 2009 case of Benet v. Benet. In that case, the judge looked at Children’s Aid Society of the Niagara Region v. R. N.
Here, the court acknowledged that nothing in Rule 17 makes a case conference immune to requests to provide transcripts of the proceeding. Justice Quinn held that a party could make a motion to produce transcripts if they could establish proof of (a) a legitimate need for the transcript and if (b) the probative value of the transcript outweighed its possible harm. In Benet, the judge determined that while Rule 17 does not prohibit the use of a conference transcript, the spirit of Rule 17(23) ensures that conferences have a “frank and open atmosphere for the purpose of achieving settlement.” And that these discussions cannot be held if “parties have concerns that the transcript of their discussions may be available for use at trial or on a motion.” Such disclosure of the transcripts would have a “chilling effect” on the discussions.
Disclosure is Only Permitted in Extraordinary Circumstances
In Kumaraswamy, Justice Coats indicated that other documents further underscored the importance of keeping transcripts of settlement conferences confidential. For instance, the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice makes the release of transcripts presumptively unavailable for conferences. The document states that unless a judge orders otherwise, “no transcripts are available to anyone – including the parties – for case, settlement, and trial management conferences.” Likewise, the Court Transcript Standards and Procedures Manual included commentary relating to Rule 17. It provided instructions that the presiding judicial official may record conferences but that recordings are only for the judge’s use and “transcripts of these recordings cannot be provided to any party without a court order or the consent of the presiding judicial official.” Similarly, the Settlement Conference Instructions of the Superior Court of Justice describe how each conference is private and confidential and that “everything that anybody says and any opinions given cannot be used outside this conference.”
Justice Coats considered the case of Strutzenberger v. Strutzenberger. A party included a transcript with excerpts from the case conference in an exhibit. The content of the transcript included confidential settlement discussions between the parties. The judge cited Rule 17(23) and the Court Transcript Standards and Procedures Manual and pointed out that no agreement concerning the discussions was reached at the conference, nor was there an order permitting the disclosure of any statements. The judge emphasized that no such order would have been granted given the circumstances of the case, and the transcript should not have been requested or provided. Accordingly, Justice Newton ordered the affidavit removed from the court file and destroyed. The party was also prohibited from using or disseminating any statement from the case conference to anyone, and he was also required to immediately destroy any copies of the transcript he had in his possession. The judge also cautioned that failure to comply with the order could result in a finding of contempt of court.
In Kumaraswamy, the judge agreed with Justice Scott that transcripts or recordings from settlement conferences should only be released in “extraordinary circumstances” since participants must be assured that their discussions’ privacy and confidentiality will be maintained. In this case, the respondent did not mention any extraordinary circumstances. In particular, the language barriers the respondent cited did not amount to extraordinary circumstances. Furthermore, the proceeding had concluded, and all matters were resolved. While the respondent had a motion scheduled in the future, the subject of that motion was unclear, so there was no basis to conclude the transcript would be of assistance on that motion. Justice Coats did not know the “gaps in understanding” the respondent hoped to clarify by having the transcripts. Importantly, there was no threat to health or safety at stake, so when set against the principles of maintaining confidentiality for frank and open discussions, the interests of justice did not require the transcripts to be released. The respondent’s motion was dismissed.
Conferences Should Encourage Frank and Open Discussions
Transcripts of a settlement conference should only be released in extraordinary circumstances. Conference confidentiality is important to encourage dispute settlement. Relying on conference discussions as evidence in later proceedings is inappropriate and inconsistent with the purpose of the Family Law Rules.
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