Confidentiality of the Mediation Process and Settlement Privilege
Bisaillon v. Bouvier, 2017 QCCS 3788
The Supreme Court of Canada granted leave to appeal in Bisaillon v. Bouvier 2020 QCCA 115, a family law matter. This case addresses the interesting issues of the confidentiality of the mediation process and the exceptions to settlement privilege. The Quebec Court of Appeal had to determine the admissibility in evidence of the “summary of the agreements” prepared by the mediator and whether matters agreed upon in mediation and any other related document or discussion arising from family mediation can be admissible in evidence. The Association de médiation familiale du Québec (Family Mediation Association of Quebec) was an intervener.
Isabelle Bisaillon and Michel Bouvier had cohabitated for three years from April 2009 to July 2012. They had two children as a result of the relationship. The parties separated in July 2012, and took part in five mediation sessions between August and December 2012. They signed the model agreement proposed by the Quebec Family Mediation Association at the start of the meeting process, which provided in part that the content of the process was to remain confidential.
The Agreement contained several provisions, including the following [informal translation]:
1. We, the undersigned, understand that the purpose of mediation is to allow spouses who are separated, divorced, or who have made the decision not to live together, to come to an agreement as to the exercise of the parental authority, children’s access and residence, financial responsibilities, division of family property and the settlement of the matrimonial regime, if applicable.
. . .
3. We recognize that the mediator is an impartial and neutral person who does not represent either of us, but has the role of helping us to negotiate an agreement on the matters listed above.
. . .
8. We recognize that the content of our meetings, interviews, and our file is confidential. We undertake not to use in evidence in 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.
. . .
10. We are informed that the summary of the agreements prepared at the end of the mediation, if applicable, will not constitute a legal document or an enforceable agreement. It will be used by legal advisers who will be retained to prepare the appropriate legal documents. We are also informed that the signing of the summary of agreements produces legal effects, even if it is not binding, and that it is preferable to obtain an independent legal opinion before proceeding to the signing.
Once the mediation was over, the mediator drafted a “summary of mediation agreements” that he sent to the parties inviting them to contact him if they noticed any errors or omissions. Neither party communicated with the mediator after receiving this summary of agreements. They did not sign it nor have a “formal” agreement drawn up. The parties partially complied with the terms of the agreements.
Unfortunately, the relationship between the parties deteriorated following a request from Ms. Bisaillon for sole custody of the children. On October 6, 2014, she filed an application for judicial partition into equal shares of the real estate held in undivided co-ownership, among other things. Mr. Bouvier argued that a settlement existed and that the summary of the matters agreed upon in mediation amounted to an agreement.
The Issues and Position of the Parties:
Ms. Bisaillon argued inadmissibility and she opposed the filing of the summary of the agreements. She invoked the principle of confidentiality of the mediation process and the provisions of the mediation agreement.
The Family Mediation Association of Quebec maintained that nothing that is said or done within the framework of the family mediation process should be able to be brought to the attention of the courts. The agreement that is concluded there is not binding until it is noted in writing and signed by the parties. The summary of agreements is not a contract and is inadmissible in evidence, even in the context of legal proceedings aimed at showing that an agreement was reached during the mediation process.
The Family Mediation Association justified its position by the fact that family mediation is a very particular process in which the parties, who are often in an unequal power relationship, are not represented by a lawyer. The confidentiality of this process must be total and must be maintained, even when one of the parties maintains that an agreement has been reached and wants to prove it.
Mr. Bouvier adopted the traditional civil law position that an agreement is binding once it is concluded, regardless of its form. Recognizing further that the mediation process is confidential, he relied on the Union Carbide c. Bombardier Inc., 2014 SCC 35 case and previous case law, which recognize exceptions to settlement privilege. He argued that the trial judge had reason to set aside the obligation of confidentiality to allow him to demonstrate that the process undertaken led to an agreement.
The Court Decisions:
The Superior Court found that it was a binding contract and ordered its implementation regarding the partition of the matrimonial home. Although the parties had agreed in their initial mediation retainer agreement that any related documentation or discussions were to be confidential, the Superior Court found that there was an implicit waiver of privilege by implementing and relying on the agreement that they had reached. A key piece of the evidence was the fact that the husband had given the wife some of the cheques as payments pursuant to the Agreement.
The Court of Appeal dismissed Ms. Bisaillon’s appeal.
The Supreme Court of Canada granted the motion by the Association de médiation familiale du Québec to be added or substituted as a party and granted the application for leave to appeal from the judgment of the Court of Appeal of Quebec.