B.C. – court’s own “alternate and free” dispute resolution procedures co-exist with private mediation-arbitration – #374

In Otte v. Otte, 2020 BCSC 1408, Mr. John J. Steeves refused to eliminate the court’s own judicial case conference (“JCC”) in favour of enforcing the parties’ contractual agreement to mediate-arbitrate.  Observing that the court’s own JCC served as an “alternate and free procedure”, Steeves J. refused to relieve the parties from participating in that procedure, reasoning that parties can “use both, either or neither of arbitration-mediation or a JCC”.

The parties had agreed in June 2020 to mediation-arbitration and to the name of a mediator-arbitrator. Claimant applied to be relieved of the obligation under the Supreme Court Family Rules, B.C. Reg. 169/2009 (“Rules”) to participate in a judicial case conference (“JCC”).  Rule 7-1(3) of the Rules imposed participation in the JCC as a condition precedent to any service of a notice of application or affidavit in support thereof.

Claimant argued that she qualified for relief from that obligation under Rule 7-1(4)(a).  She argued that attendance at a JCC was premature because Claimant and Respondent had contracted to engage in mediation-arbitration.  (Note: the reasons alternate between “mediation-arbitration” and “arbitration-mediation”.  Other than in direct quotes from the reasons, this note uses “mediation-arbitration” to refer to either instance in the reasons.)

Steeves J. declined to eliminate the court’s own offering of services to resolve disputes short of a trial.  He recognized Claimant’s ‘obvious optimism’ in the contractual services negotiated.  The parties’ agreement to engage in a private alternative dispute resolution services did not override, replace or make irrelevant those offered free by the court:

[8] I am reluctant to eliminate an alternate and free procedure, a JCC, since it may well be needed. The parties can use both, either or neither of arbitration-mediation or a JCC. That is, I do not agree that it is premature to have a JCC. If the objective is to put pressure on the respondent to participate in arbitration-mediation that is not an issue that is included in the exceptions in Rule 7-1. The claimant’s application under Family Rule 7-1(4) is dismissed.

[9] Under the current procedures only one disputed issue can be made in a written submission so I am unable to consider the claimant’s application to order the respondent to participate in mediation-arbitration. I do note that mediation-arbitration is a consensual process and, generally, a party cannot be forced to mediate. It is the courts who make orders without the approval or even co-operation of all the parties”.

urbitral note – First, Rule 7-1(15), entitled “What happens at the judicial case conference”, identifies nineteen (19) services which the court “may do” during a JCC.  The services promise solutions more typically associated with non-judicial alternative dispute resolution processes including:

– identify the issues that are in dispute and those that are not in dispute and explore ways in which the issues in dispute may be resolved without recourse to trial;

– make orders to which all the parties consent;

– mediate any of the issues in dispute;

– with the consent of the parties, refer the parties to a family dispute resolution professional, within the meaning of the Family Law Act, other than a family justice counsellor;

– without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;

In addition to issuing orders to advance the litigation, the court under Rule 7-1(15) can also adjourn the JCC and direct the parties to attend a further JCC at a specified date and time.

Second, see The Second Cup Ltd. v. 2410077 Ontario Ltd., 2020 ONSC 5268 paras 11, 32 and 33 in which Madam Justice Jessica Kimmel refused to include recovery of voluntary mediation costs as part of the all-inclusive substantial indemnity fixed as court costs in the litigation.