In Claveau v. Distribution Jacques Cartier Inc., 2020 QCCQ 8376, Mr. Justice Pierre Simard confirmed a settlement arrived at through a court-assisted mediation conducted the day of trial despite Defendants participating by videoconferencing platform. Though the legislated process for confirming a court-mediated settlement requires litigants to sign and file in court either (i) a document confirming the settlement or (ii) the settlement agreement itself, Defendants were not present in court and unable to sign as required by legislation. In his brief judgment, Simard J. (i) recorded hearing from the mediator who reported the details of the settlement, (ii) confirmed the parties’ agreement to be bound to the settlement and (iii) issued orders reflecting the terms of the settlement. In doing so, Simard J. permitted the parties to resolve their dispute without a trial, without attending in person and without breaching applicable legislation.
Plaintiff and three (3) corporate Defendants were involved in litigation in Court of Québec, Small Claims Division. On the date of the trial scheduled for their matter, the parties participated in a mediation conducted pursuant to the Court of Québec’s Regulation respecting the mediation of small claims, CQLR c C-25.01, r 0.6 (“Regulation”). As provided by the applicable rules in the Code of Civil Procedure, CQLR c C-25.01 (“C.C.P.”), a mediator assisted the parties in their discussions and the parties came to an agreement ending their dispute.
None of the three (3) corporate Defendants were present at the mediation. Their respective representatives had attended by way of videoconference. This posed an issue. The Regulation requires, among other requirements, where mediation results in an agreement ending the dispute, that the mediator forward to the court clerk a document signed by the parties containing either of a notice indicating that the case has been settled or a copy of the signed agreement. The settlement, when confirmed by the special clerk, becomes a judgment of the Court of Québec.
“Article 9 If the mediation ends the dispute, the mediator shall forward to the clerk a document signed by the parties confirming that the mediation session was held and inform the parties of their obligation to file with the office of the court either a copy of the agreement or the notice referred to in the third paragraph of article 556 of the Code of Civil Procedure (chapter C-25.01).
If the mediation does not end the dispute, the mediator must file the report referred to in the second paragraph of article 556 of the Code with the office of the Court of Québec”.
Title II “Recovery of Small Claims”, articles 536-570 of the Code of Civil Procedure, CQLR c C-25.01 (“C.C.P.”) provide rules specific to dispute resolution in the courts for small claims. Article 536 C.C.P. defines a “small claim” as including an application for recovery of claims not exceeding $15,000.00.
“Article 556 C.C.P. The court clerk informs the parties at the earliest opportunity that they may at no additional cost submit their dispute to mediation. If the parties consent to mediation, they may request the court clerk to refer them to the mediation service. In that case, the mediation session is presided over by a lawyer or a notary, certified as a mediator by their professional order.
The mediator files a report with the court office giving an account of the facts, the parties’ positions and the points of law raised.
If the parties reach a settlement, they file with the court office either a notice that the case has been settled or the signed settlement agreement. A settlement agreement confirmed by the special clerk or the court is equivalent to a judgment”.
As none of the Defendants were present at court, they were therefore unable to sign the document required by the Regulation.
Simard J. issued the briefest of judgments. He recorded the facts regarding the parties’ involvement in the successful mediation and Defendants’ participation by videoconference. Simard J. next recorded that the mediator appeared before him in court to give a detailed statement of the agreement. Representatives of two (2) of the corporate Defendants confirmed to Simard J. through videoconference their consent to and agreement to be bound by the terms of the settlement set out by the mediator. The third Defendant undertook no obligations towards Plaintiff under the agreement and Simard J. confirmed that Plaintiff understood that the agreement ended his litigation against that Defendant.
Having summarily set out the circumstances, Simard J. closed his brief judgment by issuing orders which reflected the terms of the settlement. He ordered two (2) of the corporate Defendants to make certain payments to Plaintiff and authorized Plaintiff to withdraw a sum deposited earlier into court by a Defendant.
urbitral notes – First, see Act to establish a legal framework for information technology, CQLR c C-1.1 (“LFIT Act”) which provides a variety of rules applicable to technology-based documents. The LFIT Act strives to ensure, among others,
– the coherence of legal rules and their application to documentary communications using media based on information technology, whether electronic, magnetic, optical, wireless or other, or based on a combination of technologies;
– the functional equivalence and legal value of documents, regardless of the medium used, and the interchangeability of media and technologies; and,
– the linking of a person, an association, a partnership or the State with a technology-based document, by any means allowing them to be linked, such as a signature, or any means allowing them to be identified and, if need be, located, such as certification.
The LFIT Act anticipates such situations, such as the one in Simard J.’s judgment, which allow for the signature of parties through remote means. Simard J.’s solution eliminated delays in finalizing the document required by the Regulation and likely sidestepped technology issues which may have arisen because one or more Defendants did not have the technology on hand to seize the opportunity and sign through electronic signatures. If one of the parties was unable to access technology to electronically sign the document, the requirements would not have been met.
Second, Simard J. heard directly from the mediator. The mediation provisions stipulated for Small Claims makes no mention of confidentiality but other provisions, such as article 606 C.C.P., stipulate that a mediator cannot be compelled to disclose “anything they hear or learn in the course of the mediation process” or “to produce a document prepared for or obtained in the course of the mediation process, unless the law requires its disclosure”.
In the circumstances, the settlement was not a document “prepared for or obtained in the course of the mediation” and even if it did so qualify, article 9 of the Regulation arguably could serve as the “law requires its disclosure”. The mediator was not “compelled” and, by implication, attended with consent of the parties and only to record the result of the mediation and not the exchanges which lead to it.
Third, article 547 al. (1) C.C.P. signals the option, available to defendants in Small Claims Division, to request mediation.