In Bisaillon v. Bouvier, 2020 QCCA 115, the Québec Court of Appeal applied the exception to confidentiality of mediation, confirmed in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35,  1 SCR 800, allowing disclosure of confidential exchanges necessary to prove (i) that an agreement resulted from mediation or (ii) the scope of the agreement which the parties acknowledged making. The parties could but did not tailor their mediation to eliminate that exception. Absent a clear, express statement of their intention to prevent subsequent disclosure, the exception applied to permit disclosure. The mediator’s summary of the agreement was only a simple writing, reflected his understanding of the agreement’s terms and did not bind the parties unless signed by them. Update: leave to appeal granted August 6, 2020 in Association de médiation familiale du Québec v. Isabelle Bisaillon, et al., 2020 CanLII 52976 (SCC).
The case involved a post-mediation dispute between Appellant and Respondent about the existence and scope of the result of their mediation. In the context of their separation, the parties participated in five (5) mediation sessions between August and December 2012. As part of their willingness to engage in mediation, the parties signed a standard format mediation agreement proposed by the Québec Association of Family Mediation (“Association”). No attorneys were permitted to attend with the spouses during the mediation sessions but the parties were permitted to consult their attorneys, if any, before and after such sessions.
Their agreement to mediate contained the following terms, reproduced at para. 26 of the reasons.
“[informal translation] 1. We, the undersigned, understand that the purpose of mediation is to allow spouses who are separated, divorced or who have taken the decision to no longer live together, to reach an agreement regarding the exercise of the parental authority, access and children’s residence, financial responsibilities, the division of family property and the settlement of the matrimonial regime, as necessary.”
“[informal translation] 3. We recognize that the mediator is an impartial and neutral person who represents neither one or the other of us, but has the role of helping us to negotiate an agreement on the issues listed above.”
“[informal translation] 8. We recognize that the content of our meetings, interviews and our file is confidential. We undertake not to use in evidence before a court any document contained in the file including the summary of the agreements, without the consent of both parties. The mediator cannot communicate this information to anyone, except when the law expressly orders it.”
“[informal translation] 10. We are informed that the summary of the agreements prepared at the end of the mediation, as the case may be, will not constitute a legal document or an enforceable agreement. It will be used by the legal advisers who will be retained to prepare the appropriate legal documents. We are also informed that signature of the summary of agreements has legal effects, even if it is not enforceable, and that it is preferable to obtain independent legal advice before proceeding to its signature.”
Once the mediation ended, the mediator drafted a summary of the agreements made during the mediation (“Mediator’s Summary”) (“résumé des ententes de mediation”) and communicated it to the parties, inviting them to communicate with him if they noted any errors or omissions. Neither party communicated with the mediator after receipt of the Mediator’s Summary and did not sign it or draft a formal agreement.
The terms of the mediated agreement set out in the Mediator’s Summary included payment of $60,000.00 made by Respondent in exchange for Appellant’s assignment of rights in the matrimonial home. Of that sum, $20,000.00 was to be paid before February 1, 2013.
Between January 14, 2013 and February 11, 2013, the parties exchanged writings, including e-mails and cheques, in which each referred to the terms of the payments to be made with their respective reference to the ‘mediation agreement’. After this period, the parties’ relationship deteriorated. Appellant instituted proceedings October 6, 2014 seeking a judicial determination of issues which Respondent then claimed, in his defence to those proceedings, had been settled in mediation.
In his attempt to demonstrate the agreement, Respondent referred to exchanges made during the mediation and he filed the Mediator’s Summary in support of his defense and cross-demand. Objecting to the breach of confidentiality by the filing of the mediation exchanges, Appellant filed a motion to the Superior Court. She argued, in addition, that the exchanges did not qualify as a contract. Her application was dismissed. She sought leave to appeal this interim decision but leave was denied.
The parties proceeded to trial in June 2017 and Appellant again objected to Respondent filing the Mediator’s Summary and any oral testimony of exchanges during the mediation. She relied on the principle of confidentiality and the terms of the Mediation Agreement. The trial judge took those objections under reserve and, in the final judgment, dismissed them.
The trial judge in his decision Bisaillon v. Bouvier, 2017 QCCS 3788 acknowledged that the exchanges were confidential but considered that the parties had implicitly renounced to their confidentiality by referring to the mediated settlement terms in their post-mediation e-mails and by their partial performance of the terms. Relying on Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 (CanLII),  1 SCR 800, the trial judge determined that Respondent did not try to use confidential exchanges to support his position but, rather, demonstrate that the mediation process had borne fruit, resulting in an agreement.
He observed that the juridical qualification of such agreements varied from case to case but, despite not be signed or homologated, the agreement regarding the matrimonial home had been confirmed by the parties’ own performance which he determined signified their agreement to be bound by it.
On appeal, the three (3) judges agreed to dismiss the appeal but disagreed on the reasons.
(i) Madam Justice Marie-Josée Hogue, with Madam Justice Claudine Roy’s concurrence, adopted a different analytical framework than the trial judge but came to the same result. In doing so, due to the Association’s intervention, Hogue J.A. did address a ground of objection which Appellant had not raised herself in first instance.
Hogue J.A. divided her analysis into five (5) components: (a) rules applicable to family mediation; (b) confidentiality and the exception; (c) admissibility of a writing to prove a juridical act; (d) testimonial evidence; and, (e) obligatory force of an agreement entered into in mediation. This note focuses on (b), (c) and (d).
(b) paras 73-90 – confidentiality and the exception
At para. 73, Hogue J.A. excerpted the caution inserted by the mediator into the Mediator’s Summary, remarking that it reiterated article 10 of the parties’ agreement to mediate and had added a mention that even partial application of the terms of the Mediator’s Summary could not constitute as an acknowledgement of the agreement.
Hogue J.A. affirmed that the mediation process was confidential. The parties as much as the mediator are held to respect the secret nature of the exchanges which occur. This confidential character flowed from a rule of evidence issuing from Common Law known as settlement privilege. The principle was now confirmed in article 4 of Québec’s Code of Civil Procedure, CQLR c C-25.01 (“C.C.P.”).
“Article 4 C.C.P. Parties who opt for a private dispute prevention and resolution process and the third person assisting them undertake to preserve the confidentiality of anything said, written or done during the process, subject to any agreement between them on the matter or to any special provisions of the law”.
Protecting both written and verbal exchanges, the privilege promotes frank and open discussion by reassuring parties that their exchanges cannot be used against them if they do not arrive at an agreement. See Globe and Mail v. Canada (Attorney General), 2010 SCC 41,  2 SCR 592 and Gesca ltée v. Groupe Polygone Éditeurs inc. (Malcom Média inc.), 2009 QCCA 1534.
That said, Hogue J.A. added that certain exceptions existed, including that which allowed disclosure by one of the parties once it is necessary to make proof that an agreement did result from the discussions or to prove the scope of the agreement which the parties acknowledge making.
Hogue J.A. referred to Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 (CanLII),  1 SCR 800 which confirmed that the privilege, now codified at article 4 C.C.P., formed part of Québec law and recalled the importance of respecting the parties’ freedom of contract once they chose to undertake mediation. Citing paras 29 and 30 of that decisions, Hogue J.A. underlined that the Supreme Court had acknowledged the right of parties to modify that privilege. Those excerpts, as emphasized by Hogue J.A., recognized the parties’ right to broaden the terms of the privilege and that, as stated in Union Carbide Canada Inc. v. Bombardier Inc., mediation remains a “creature of contract”, allowing parties to “tailor their confidentiality requirements to exceed the scope of that privilege and, in the case of breach, avail themselves of a remedy in contract”.
Despite the freedom to set aside the privilege in whole or in part, the intention to do so must be clearly expressed. Citing from para. 54 of the Supreme Court decision, Hogue J.A. emphasized the need for such clarity:
“Where an agreement could have the effect of preventing the application of a recognized exception to settlement privilege, its terms must be clear. It cannot be presumed that parties who have contracted for greater confidentiality in order to foster frank communications and thereby promote a settlement also intended to displace an exception to settlement privilege that serves the same purpose of promoting a settlement. Parties are free to do this, but they must do so clearly. To avoid a dispute over the terms of a settlement, they may also choose to stipulate that, to be valid, any settlement agreed to in the mediation must be immediately put into writing”.
Examining the terms of the agreement to mediate between Appellant and Respondent, Hogue J.A. held that they had not exercised the option to set aside the exception to disclose the exchanges in order to prove the existence of an agreement. Article 8 of the agreement to mediate only confirmed the confidential nature of the mediation, without more. Hogue J.A. considered that the agreement to mediate entered into by Appellant and Respondent was ‘very similar’ to the one considered by the Supreme Court. The fact that the dispute involved a family mediation did nothing to prevent the exception from applying. The exception identified in Union Carbide Canada Inc. v. Bombardier Inc. applied as much to commercial mediations to family mediations.
Hogue J.A. concluded that the parties had not excluded the exception to confidentiality and, as a result, nothing prevented either party from making evidence of exchanges during the mediation so long as they were necessary to demonstrate that an agreement had arisen during the mediation. The parties’ failure to eliminate the exception to confidentiality justified the trial judge’s dismissal of Appellant’s objection.
Hogue J.A. commented on the potential advantage of having provided different wording which spoke directly about the use of such exchanges post-mediation in the event of disagreement. She also noted the rule against parole evidence for debts above $1,500.00 but that, in the circumstances, a commencement of evidence in writing rendered such parole evidence admissible.
(c) paras 91-105 – admissibility of a writing to prove a juridical act
Despite the above determination, Hogue J.A. did find that another ground justified objection to filing such exchanges. The Mediator’s Summary did not qualify as a writing admissible in Québec under articles 2813 et seq., 2826 and 2831 of the Civil Code of Québec, CQLR c CCQ-1991 (“C.C.Q.”). The Mediator’s Summary was not an authentic or semi-authentic act, did not bear the signature of either party, did not issue from them and was not a document produced in the normal course of the activities of an enterprise. The Mediator’s Summary was only a simple writing, drafted by the mediator, reflecting his understanding of the elements regarding which the parties said that they agreed. The agreement to mediate even stated that such a document was not binding.
Once signed, such a document could be a contract. If not signed, such a document was only a tool.
(d) paras 106-114 – testimonial evidence
Hogue J.A. reviewed the testimony given a trial and concluded that the parties had entered into a binding agreement during the mediation. The parties’ post-mediation confirmed the version provided by Respondent.
In closing, Hogue J.A. determined that the trial judge’s reasoning was beyond reproach when he determined that, by partially performing the agreement arrived at during mediation, the parties had expressed their intention to be bound and thereby confirmed it.
(ii) Mr. Justice François Doyon, writing for himself, disagreed that Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 (CanLII),  1 SCR 800 applied in family law mediations. His reasons underlined the specific nature of family mediation and the absolute quality of the confidentiality, including exchanges and summaries. He urged that the reverse approach exist in family mediations, namely that the exception did not apply unless the parties stipulated expressly to the contrary.
Doyon J.A. agreed that, on the facts, the parties had either acknowledged the agreement or renounced to the confidentiality by their post-mediation conduct, including their e-mails and cheques.
urbitral note – First, Hogue J.A., at footnote, observed that the rules of evidence are not of public order. She referred to article 2859 C.C.Q. which confirmed that a court may not of its own motion raise a ground of inadmissibility resulting from the provisions of Chapter II “Means of Proof” where a party who is present or represented has failed to raise it. See also Elmalki v. Lafontaine Lumber inc., 1989 CanLII 412 (QC CA).