– Mediation Confidentiality Extends to Pleadings in Ontario.

It has long been established that absent some unusual circumstances, parties engaged in without prejudice settlement discussions (whether it be through mediation or otherwise) cannot lead such evidence at trial until after the verdict (provided of course that those without prejudice discussions are relevant, such as for assessing costs).  Recently the court in Isenberg v. Erem, 2020 ONSC 444 confirmed that this privilege extends to pleadings as well, and clarified that it is not necessarily every reference to “mediation” that must be removed: but rather, just those paragraphs touching on what was discussed during mediation.

A Closer Look at the Decision:

The Plaintiff in Isenberg made references to mediation in several paragraphs within her Statement of Claim.  The defendant took objection to those paragraphs (amongst others) and brought a motion asserting that the paragraphs referencing mediation should be struck on the grounds of mediation privilege.  The judge reviewed each paragraph referencing mediation and concluded that:

(A) The paragraphs where the plaintiff simply asserted that she offered to mediate, or requested the defendant to mediate, could remain in the Statement of Claim; and

(B) The one paragraph that actually referred to the name of the mediator, and an alleged conclusion reached at the mediation, had to be removed (often termed “struck out”).

In short, the judge reasoned that the unexpunged paragraphs could remain because they did “not refer to any particular mediation ” such that they did “not run afoul of the concern with respect to privileged content. ” By contrast, the one paragraph that had to be removed “could neither be substantiated nor challenged without evidence that likely would be inadmissible. ”

Did the Court Get it Right?

What is not clear from the decision is why the “saved” paragraphs were considered proper. Although they didn’t refer to what was discussed during a mediation, there is still the issue of whether they were pleading (or raising) anything relevant: what is the relevance of a mediation being offered or requested historically? The judge didn’t address this issue. Perhaps if damages for “bad faith” were being sought, the actions of the parties surrounding their efforts to resolve or extend the “dispute” may be relevant, but the decision is silent on this point. This said, the underlying claim centers around allegations of conspiracy and deceit on the part of the defendant to strip away an alleged interest the plaintiff had in the ownership of a family business, so perhaps this underlying theme made the conduct surrounding the efforts to mediate (or alternatively to avoid mediation) relevant and a proper part of the Statement of Claim.  

Authored by: David M. José (B.A, LL.B)

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