Confidentiality
22.
In order to assist in the resolution of the Disagreement, a neutral evaluation will not be
open to the public.
23.
The Parties, and all persons, will keep confidential:
a) all oral and written information disclosed in the neutral evaluation; and
b) the fact that this information has been disclosed.
24.
The Parties will not rely on or introduce as evidence in any proceeding, whether or not
that proceeding relates to the subject matter of the neutral evaluation, any oral or written
information disclosed in or arising from the neutral evaluation, including:
a) any documents of other Parties produced in the course of the neutral evaluation
which are not otherwise produced or producible in that proceeding;
b) any views expressed, or suggestions made, in respect of a possible settlement of
the Disagreement;
c) any admissions made by any Party in the course of the neutral evaluation, unless
otherwise stipulated by the admitting Party;
d) the fact that any Party has indicated a willingness to make or accept a proposal for
settlement; and
e) subject to Section 28, the opinion of the neutral evaluator.
25.
Sections 23 and 24 do not apply:
a) in any proceedings for the enforcement or setting aside of an agreement resolving
the Disagreement that was the subject of a neutral evaluation;
b) if the adjudicator in any proceeding determines that the interests of the public or
the administration of justice outweigh the need for confidentiality; or
c) if the oral or written information is in the public forum.
26.
A neutral evaluator, or anyone retained or employed by the neutral evaluator, is not
compellable in any proceedings to give evidence about any oral and written information
acquired or opinion formed by that person as a result of a neutral evaluation under this
Appendix, and all Parties will oppose any effort to have that person or that information
subpoenaed.
27.
A neutral evaluator and anyone retained or employed by the neutral evaluator is
disqualified as a consultant or expert in any proceeding relating to the Disagreement,
including any proceeding that involves persons not a Party to the neutral evaluation.
28.
Notwithstanding Sections 23 to 26, after an Arbitral Tribunal has delivered its final
arbitral award, or a court has referred its decision, in respect of a Disagreement, a Party,
for the purpose only of making a submission on the allocation of costs of that arbitral or
judicial proceeding, may give to the Arbitral Tribunal or the court a copy of:
a) the neutral evaluator's opinion respecting that agreement; or
b) the neutral evaluator's notice of termination under Section 7.
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