Commercial Mediation Act
Commercial Mediation Act, 2010
S.O. 2010, CHAPTER 16
Schedule 3
Consolidation
Period: From October 25, 2010 to the
e-Laws currency date.
No amendments.
Purpose
1. The
purpose of this Act is to facilitate the use of mediation to resolve commercial
disputes. 2010, c. 16,
Sched. 3, s. 1.
Application
2. (1) Subject to subsections
(2), (4) and (5), this Act applies to a mediation of a commercial dispute if
the mediation commences on or after the day this Act comes into force. 2010, c. 16, Sched. 3,
s. 2 (1).
Agreement to opt
out of or modify application of Act
(2) The
parties to a mediation of a commercial dispute may,
(a) agree
not to have this Act apply to the mediation; or
(b) subject
to subsections 4 (4) and 7 (5), apply this Act with such modifications as the
parties have agreed on. 2010,
c. 16, Sched. 3, s. 2 (2).
Binds the Crown
(3) This
Act binds Her Majesty in right of
Exceptions
(4) This
Act does not apply to,
(a) a
mediation under or relating to the formation of a collective agreement;
(b) a
computerized or other form of mediation in which the mediation is not conducted
with an individual as the mediator;
(c) actions
taken by a judge or arbitrator in the course of judicial or arbitral
proceedings to promote settlement of a commercial dispute that is the subject
of the proceedings; or
(d) mediations
for which procedures are prescribed in the Rules of Civil Procedure made under
the Courts of Justice Act. 2010, c. 16, Sched. 3,
s. 2 (4).
Same, conflict of
law, etc.
(5) This
Act does not apply to the mediation of a commercial dispute to the extent that,
(a) this
Act conflicts or is inconsistent with the requirements of another Act or a
regulation made under another Act; or
(b) the
application of this Act is excluded or modified by the regulations. 2010, c. 16, Sched. 3,
s. 2 (5).
Definitions
3. In
this Act,
“commercial dispute” means a dispute
between parties relating to matters of a commercial nature, whether contractual
or not, such as trade transactions for the supply or exchange of goods or
services, distribution agreements, commercial representation or agency,
factoring, leasing, construction of works, consulting, engineering, licensing,
investment, financing, banking, insurance, exploitation agreements and
concessions, joint ventures, other forms of industrial or business co-operation
or the carriage of goods or passengers; (“différend commercial”)
“mediation” means a collaborative
process in which,
(a) the parties to a commercial dispute agree to
request a neutral person, referred to as a mediator, to assist them in their
attempt to reach a settlement in their dispute, and
(b) the mediator does not have authority to
impose a solution to the dispute on the parties. (“médiation”) 2010, c. 16, Sched. 3, s. 3.
Interpretation
4. (1) This Act is based on
the United Nations Commission on International Trade Law, (UNCITRAL) Model Law
on International Commercial Conciliation (2002) and, in interpreting this Act,
consideration must be given to its international origin, the need to promote
uniformity in its application and the observance of good faith. 2010, c. 16, Sched. 3,
s. 4 (1).
Same
(2) In
interpreting this Act, recourse may be had to,
(a) the Report of the United Nations Commission
on International Trade Law on its 35th session; and
(b) the UNCITRAL Model Law on International
Commercial Conciliation with Guide to Enactment and Use 2002. 2010, c. 16, Sched. 3,
s. 4 (2).
Same
(3) If
a question arises during a mediation that no provisions of this Act or the
regulations expressly cover, the question is to be settled in conformity with
the general principles on which the Model Law on International Conciliation is
based. 2010, c. 16, Sched. 3,
s. 4 (3).
Parties may not opt out of this section
(4) The
parties to a mediation to which this Act applies may not exclude or modify the
application of this section. 2010,
c. 16, Sched. 3, s. 4 (4).
Mediation
Commencement
5. (1) A mediation commences
on the day on which the parties to a commercial dispute agree to submit the
dispute to mediation. 2010, c. 16,
Sched. 3, s. 5 (1).
When invitation to mediate may be
considered rejected
(2) A
party who invites another party to mediate may consider its invitation rejected
if the party does not receive acceptance within 30 days after the day on which
the party sent its invitation, or within the period specified in the
invitation. 2010, c. 16,
Sched. 3, s. 5 (2).
Termination
(3) The
mediation terminates on the earliest of,
(a) the
day on which the parties reach a settlement agreement;
(b) the
day on which the parties jointly declare to the mediator that the mediation is
terminated;
(c) the day on which the mediator, after
consultation with the parties, declares that further efforts at mediation are
no longer justified and that the mediation is terminated; and
(d) the first day that a party whose
participation is necessary for the mediation to continue declares to the
mediator and to the other party or parties that the mediation is
terminated. 2010, c. 16,
Sched. 3, s. 5 (3).
Termination of party’s participation
(4) A
mediation may continue after the termination of a party’s participation in the
mediation if the party’s participation is not necessary in order for the other
parties to continue the mediation with respect to issues that are still in
dispute. 2010, c. 16,
Sched. 3, s. 5 (4).
Appointment of mediator
6. (1) Subject to subsection
(2), the mediation is to be conducted by a mediator appointed by agreement of
the parties. 2010, c. 16,
Sched. 3, s. 6 (1).
Same
(2) The
parties may ask another person or entity to recommend or appoint a mediator
and, if the person or entity agrees to do so, the person or entity shall make
every effort to recommend or appoint a person who is impartial and
independent. 2010, c. 16,
Sched. 3, s. 6 (2).
Duty to disclose
(3) A
person who is approached to be a mediator shall,
(a) make sufficient inquiries to determine if he
or she may have a current or potential conflict of interest or if any
circumstances exist that may give rise to a reasonable apprehension of bias;
and
(b) without delay, disclose to the parties any
such conflict of interest or circumstances.
2010, c. 16, Sched. 3, s. 6 (3).
Same, duty continues during mediation
(4) The
mediator’s duty to disclose under clause (3) (b) continues until the
termination of the mediation. 2010,
c. 16, Sched. 3, s. 6 (4).
Same
(5) A
person who makes a disclosure under clause (3) (b) before or while acting as a
mediator may subsequently act or continue to act as the mediator only with the
consent of all parties given after full disclosure of the facts and
circumstances. 2010, c. 16,
Sched. 3, s. 6 (5).
Interpretation
(6) For
the purposes of this section, a person is deemed to have a conflict of interest
with respect to a mediation if,
(a) the
person has a financial or personal interest in the outcome of the mediation; or
(b) the
person has an existing or previous relationship with a party or a person
related to a party to the mediation.
2010, c. 16, Sched. 3, s. 6 (6).
Conduct of
mediation, by agreement
7. (1) The parties and the
mediator may agree on the manner in which the mediation is to be conducted and
may agree to follow a set of existing rules or procedures unless prohibited
from doing so under another Act or any regulations under this or another
Act. 2010, c. 16, Sched. 3,
s. 7 (1).
Same, as
determined by mediator
(2) To
the extent that the parties have not agreed on the manner in which the
mediation is to be conducted, the mediator may conduct the mediation in the
manner the mediator considers appropriate, taking into account any requests by
the parties and the circumstances of the dispute, including any need for speedy
settlement. 2010, c. 16,
Sched. 3, s. 7 (2).
Mediator’s
authority
(3) The
mediator may,
(a) meet
or communicate with the parties together, separately or in any combination; and
(b) make
proposals for settlement of the dispute at any stage of the mediation. 2010, c. 16, Sched. 3,
s. 7 (3).
Obligation of
fair treatment
(4) The
mediator shall maintain fair treatment of the parties throughout the mediation,
taking into account the circumstances of the dispute. 2010, c. 16, Sched. 3,
s. 7 (4).
Parties may not
opt out of subs. (4)
(5) The
parties shall not modify the obligation of the mediator in subsection (4) nor
relieve the mediator from the duty to comply with that subsection. 2010, c. 16, Sched. 3,
s. 7 (5).
Disclosure of
information between parties
8. (1) A mediator may
disclose to a party any information relating to the mediation that the mediator
receives from another party unless that other party expressly asks the mediator
not to disclose the information. 2010,
c. 16, Sched. 3, s. 8 (1).
Duty to keep
confidential
(2) Information
relating to the mediation must be kept confidential by the parties, the
mediator and any other persons involved in the conduct of the mediation unless,
(a) all
the parties agree to the disclosure and, if the information relates to the
mediator, the mediator agrees to the disclosure;
(b) the disclosure is required by law;
(c) the disclosure is required for the purposes
of carrying out or enforcing a settlement agreement;
(d) the disclosure is required for a mediator to
respond to a claim of misconduct; or
(e) the disclosure is required to protect the
health or safety of any person. 2010,
c. 16, Sched. 3, s. 8 (2).
Exception
(3) The
requirement to keep information relating to the mediation confidential does not
apply to information,
(a) that is publicly available;
(b) that the parties, by their conduct, do not
treat as confidential; or
(c) that is relevant in determining if the
mediator has failed to make a disclosure required under subsection 6 (3). 2010, c. 16, Sched. 3,
s. 8 (3).
Admissibility of information
9. (1) Subject to subsections
(2) and (3), none of the following information, in any form, is discoverable or
admissible in evidence in arbitral, judicial or administrative proceedings:
1. An invitation by a party to mediate a
commercial dispute, a party’s willingness or refusal to mediate the dispute,
information exchanged between the parties before the mediation commences and
any agreement to mediate the dispute.
2. A document prepared solely for the purposes
of the mediation.
3. Views expressed or suggestions made by a
party during the mediation concerning a possible settlement of the dispute.
4. Statements or admissions made by a party
during the mediation.
5. Statements or proposals for settlement made
by the mediator.
6. The fact that a party indicated a willingness
to accept a proposal for settlement made by the mediator.
7. The fact that a party or the mediator
terminated the mediation. 2010,
c. 16, Sched. 3, s. 9 (1).
Exceptions
(2) The
information referred to in subsection (1) may be admitted in evidence to the
extent required,
(a) by law;
(b) for
the purposes of carrying out or enforcing a settlement agreement;
(c) by
a mediator to respond to a claim of misconduct; or
(d) if
all of the parties to the mediation consent and, if the information relates to
the mediator, the mediator consents.
2010, c. 16, Sched. 3, s. 9 (2).
Same, to
determine costs
(3) Information
about the conduct of a party to the mediation or the conduct of the mediator
may be disclosed after the final resolution of the dispute to which the
mediation relates for the purpose of determining costs of the mediation or of
proceedings taken because the mediation did not succeed. 2010, c. 16, Sched. 3,
s. 9 (3).
Other information
used in a mediation
(4) Except
for the limitations set out in subsection (1), information created for purposes
other than a mediation does not become inadmissible only because it was used in
the mediation. 2010, c. 16,
Sched. 3, s. 9 (4).
Application of
subss. (1) and (2)
(5) Subsections
(1) and (2) apply whether or not the arbitral, judicial or administrative
proceedings relate to a dispute that is or was the subject of the
mediation. 2010, c. 16,
Sched. 3, s. 9 (5).
Acting as
mediator and arbitrator
10. Unless
all parties to a mediation otherwise agree, a mediator shall not act as both a
mediator and an arbitrator or as an arbitrator after acting as the mediator
with respect to,
(a) the
commercial dispute that is the subject of the mediation; or
(b) another
dispute that arises from the same contract or legal relationship or from a
related contract or legal relationship between the parties. 2010, c. 16, Sched. 3, s. 10.
Agreements
respecting arbitral or judicial proceedings
11. (1) The
parties may agree not to proceed with arbitral or judicial proceedings before
the mediation is terminated. 2010,
c. 16, Sched. 3, s. 11 (1).
Exception
(2) Despite
subsection (1), an arbitrator or court may permit the proceedings to proceed
and may make any order necessary if the arbitrator or court considers,
(a) that proceedings are necessary to preserve
the rights of any party; or
(b) that proceedings are necessary in the
interests of justice. 2010, c. 16,
Sched. 3, s. 11 (2).
Mediation not terminated by commencement
of arbitral proceedings, etc.
(3) The
commencement of any arbitral or judicial proceedings is not of itself to be
regarded as a termination of the agreement to mediate the commercial dispute or
as the termination of the mediation.
2010, c. 16, Sched. 3, s. 11 (3).
Settlement agreement binding
12. A
settlement agreement or minutes of settlement are binding on the parties to the
mediation who sign them. 2010,
c. 16, Sched. 3, s. 12.
Enforcement
of settlement
Definitions
13. (1) In
this section,
“registrar” means the registrar of the
Superior Court of Justice; (“greffier”)
“settlement agreement” means an
agreement signed by more than one party to the mediation, or minutes of
settlement signed by more than one of the parties, that disposes of one or more
issues in dispute in the mediation. (“accord issu d’un règlement amiable”) 2010, c. 16, Sched. 3,
s. 13 (1).
Application to judge or court
(2) If
a party to a settlement agreement fails to comply with the terms of a
settlement agreement, another party wishing to enforce the agreement may, on
notice to all other parties who signed the agreement,
(a) apply to a judge of the Superior Court of
Justice for judgment in the terms of the agreement; or
(b) apply to the Superior Court of Justice for an
order authorizing the registration of the agreement with the court. 2010, c. 16, Sched. 3,
s. 13 (2).
Application of the Rules of Civil
Procedure
(3) The
Rules of Civil Procedure made under the Courts of Justice
Act apply with respect to an application under this section. 2010, c. 16, Sched. 3,
s. 13 (3).
Judgment
(4) On
an application under clause (2) (a), the judge may grant judgment in accordance
with the terms of the agreement. 2010,
c. 16, Sched. 3, s. 13 (4).
Order
(5) On
an application under clause (2) (b), the registrar shall, subject to subsection
(6), make an order authorizing the registration of the settlement
agreement. 2010, c. 16,
Sched. 3, s. 13 (5).
Same
(6) No
judgment or order shall be granted or made if it is shown to the court that,
(a) a party to the mediation against whom the
applicant is seeking to enforce the settlement agreement did not sign the
agreement or otherwise consent to the terms of the agreement that the applicant
is seeking to enforce;
(b) the settlement agreement was obtained by
fraud; or
(c) the settlement agreement does not accurately
reflect the terms agreed to by the parties in settlement of the dispute to
which the agreement relates. 2010,
c. 16, Sched. 3, s. 13 (6).
Effect of filing agreement
(7) On
the filing of a true copy of the settlement agreement with the registrar
pursuant to an order authorizing the registration of the agreement,
(a) the settlement agreement is registered with
the court and has the same force and effect as if it were a judgment obtained
and entered in the Superior Court of Justice on the date of the registration;
and
(b) the costs of and incidental to the
registration of the settlement agreement and the application for registration
are recoverable as if they were sums payable under a judgment. 2010, c. 16, Sched. 3, s. 13 (7).
Costs
(8) The
costs referred to in clause (7) (b) shall be in the amount,
(a) that is prescribed by the regulations or
determined by the registrar in accordance with the regulations; or
(b) that is determined by the registrar, in his
or her discretion, if no regulation under clause 15 (b) is in force at the time
the settlement agreement is filed with the registrar. 2010, c. 16, Sched. 3, s. 13 (8).
Enforcement of
mediator’s fees, etc.
14. (1) This section applies
if a settlement agreement, minutes of settlement or other written agreement or
document signed by one or more parties to a mediation of a commercial dispute,
(a) contains
an undertaking by one or more of the parties to pay the fees and expenses of
the mediator for performing the functions of a mediator in the mediation; and
(b) sets
out the amount of fees and expenses payable or the manner of calculating the
fees and expenses, all the rates and other variables of which have been agreed
to in the agreement, minutes or other document.
2010, c. 16, Sched. 3, s. 14 (1).
Application of
s. 13
(2) Section
13 applies with necessary modifications if a mediator is not paid his or her
fees and expenses in accordance with the settlement agreement, minutes of
settlement or other written agreement or document and wishes to enforce
payment. 2010, c. 16,
Sched. 3, s. 14 (2).
Regulations
15. The
Lieutenant Governor in Council may make regulations,
(a) excluding
or modifying the application of all or part of this Act;
(b) prescribing
the amount of costs recoverable by a party under clause 13 (7) (b) or
principles to be applied by the registrar to determine the amount of those costs;
(c) defining any word or expression used but not
defined in this Act;
(d) respecting any matter that the Lieutenant
Governor in Council considers necessary or advisable to carry out effectively
the intent and purpose of this Act.
2010, c. 16, Sched. 3, s. 15.
16. Omitted
(provides for coming into force of provisions of this Act). 2010, c. 16, Sched. 3, s. 16.
17. Omitted
(enacts short title of this Act).
2010, c. 16, Sched. 3, s. 17.
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