This recent Federal Court case illustrates the importance of remaining silent about what transpired during a private mediation: failing to do so is punishable as an act of contempt of the court process. Indeed, this recent court decision is believed to be the first case to assess the appropriate penalty to impose in such circumstances.
In this case, after each of two separate mediations, the Plaintiff posted videos on social media disclosing, amongst other things, information about:
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- The Defendant’s conduct during the mediation, including the offers to settle made by the Defendant;
- The mediator’s preliminary assessment of the merits of the case, in this case the opinions of an Associate Judge; and
- The anticipated evidence of the experts and other witnesses, as such was disclosed during the mediation.
The Plaintiff immediately removed the videos once confronted by the Defendant’s counsel. In a prior proceeding before the same court, the Plaintiff was found to be in contempt of court for breaching the duty of confidentiality associated with the mediation. Indeed, the prior ruling found that the Plaintiff’s “disclosure of confidential information obtained in the course of the mediation was intentional, and sufficiently serious to warrant a finding of contempt.” The current proceeding was to determine the penalty to impose on the Plaintiff.
By the time of the penalty phase, the underlying civil claim had been settled, and the Defendant was taking no position on the penalty phase of this contempt hearing: indeed, the Defendant was not seeking any costs associated with the Plaintiff’s contempt.
In the circumstances, the court could have simply taken the position that the matter was moot, given the underlying action was completely resolved to everyone’s satisfaction, but the judge made a point that such behaviour cannot be countenanced by the court, and that a penalty had to be fashioned by the court even if the other party or parties were not seeking any remedy or sanction.
The judge explained that civil contempt had both a private and public aspect, and even though the private dimension was moot given the settlement of the underlying civil claim, the public dimension still continued.
Even though judges have wide discretion, the sanction, penalty, and/or sentencing had to nonetheless to be assessed against the following principles:
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- It must be be proportionate to the gravity of the offence and the degree of responsibility of the offender;
- The court must consider the range of sentences for similar offences and adjust the sentence depending on the objective of sentencing and any aggravating and mitigating factors.
- The objectives of sentencing for civil contempt include:
- Repairing the depreciation of the authority of the court;
- Enforcing court order;
- Specific and general deterrence;
- Denunciation or punishment; and
- Aggravating factors must be established beyond a reasonable doubt and include:
- Whether the offending conduct was prolonged;
- The scope or scale of the offending conduct;
- Whether the offending conduct continued after it was found to constitute contempt;
- The offender’s motivation; and
- Whether the offender has previously been found in contempt
- Mitigating factors must be established on the balance of probabilities, and include:
- A genuine expression of remorse;
- Acceptance of responsibility;
- Taking steps towards rehabilitation;
- Good faith efforts to comply with the order in question, and
- Personal circumstances that reduce the offender’s degree of responsibility
- Any fine must be capable of being paid by the offender.
Having no prior cases to draw upon, the court looked at other civil contempt cases (rather than in the criminal context), and found that penalties in general ranged between $500 and $5,000. If the opposing party was seeking costs in relation to the Plaintiff’s contemptuous conduct, the range appeared to be in the $1,000 to $15,000 range for costs, depending on the circumstances. The court noted that the Plaintiff was at a great advantage in this regard because the Defendant was not seeking costs which often is much higher than the public penalties awarded.
The Plaintiff gave an impassioned account of the financial, emotional and spiritual toll the legal proceedings had taken on him and his son. He appeared contrite in every way, and pleaded with the court that he had no money to pay any penalty. To the later point, the judge gave it very little weight because no evidence was tendered to establish the Plaintiff’s alleged impecuniosity.
The judge was clearly not impressed with the degree of the Plaintiff’s breach of confidentiality. Put another way, if the Plaintiff had shared a small detail with a friend-or-two, his indiscretion would likely be considered to be minor; however, in this instance the judge said (at paragraph 22):
“The primary aggravating factor in this case is the scope and scale of the offending conduct. (The Plaintiff) …. posted several videos on social media that were available to the public at large. He disclosed many details of what had transpired during the confidential mediation, and he made disparaging comments and personal threats against the Defendants and their representatives. His self-serving testimony during the liability phase of the contempt motion was found by the Court to be unworthy of belief.”
However, the judge did recognize, as a mitigating factor, how quickly the Plaintiff removed the material when he was approached by Defendant’s counsel, and what the judge considered to be “genuine expressions of remorse” and the turmoil that he has endured.
Ultimately, the judge fixed the fine at $1,000, acknowledging that it was at the lower end of the range established by the jurisprudence, but “nevertheless marks the gravity of the contempt.”
Even though the monetary fine was a modest $1,000, the Plaintiff likely lost a lot of sleep over his actions and his ill-conceived bravado, and the Plaintiff had legal representation for this penalty hearing which likely cost him a fair bit of money as well. A costly lesson for breaching the duty of confidentiality in a mediation proceeding. If the civil case was still ongoing, the financial toll would likely have been in the tens of thousands of dollars, not to mention sucking out a lot the life from the Plaintiff’s case as he finds himself pleading for the court’s indulgence, forgiveness, and leniency, in front of his opponent: not a good optic.
I stress the importance of confidentiality at the start of every mediation that I conduct, and cases like this certainly help me make my point.
Planet Fitness Inc v. Planet Fitness Franchising LLC (PFIP, LLC), 2025 FC 1713 (CanLII)
https://www.canlii.org/en/ca/fct/doc/2025/2025fc1713/2025fc1713.html