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The Ontario Commercial Mediation Act, 2010 (Blog Part III)
This blog post (Part III) consider the provisions of the Ontario Commercial Mediation Act 2010, S.O. 2010, c.16, Sch. 3 (the “Act”) concerning settlement agreements, enforcement of settlement, application of the Ontario Rules of Civil Procedure, judgments, orders, the effect of filing the agreement, and enforcement of mediator’s fee.
Earlier blog posts:
(Part II) considers the provisions of the Act not included in an earlier blog post (Part I) or the subsequent blog post (Part III), including the mediator’s authority, prohibition of disclosure between parties, confidentiality, admissibility, and the relationship to arbitration and judicial proceedings.
(Part I) considers the provisions of the Act concerning the application of that legislation, definitions contained in the Act, its interpretation, commencement and termination of the mediation, and the mediators appointment, duty of disclosure, and conduct of the mediation.
This blog post describes two important parts of the Act, sections 12 and 13 addressing settlement and section 14 addressing enforcement of the mediator’s fees.
Binding Settlement
Section 12 of the Act provides that a settlement agreement or minutes of settlement are binding on the parties to the mediation who sign them.
Enforcement of Settlement
Section 13 of the Act provides a comprehensive provision for enforcing a settlement made at a mediation.
Definitions
Firstly, subsection 13(1) provides definitions used in this section, so that “registrar” means the registrar of the Superior Court of Justice; (“greffier”) and “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”)
Application to Judge or Court
Secondly, subsection 13(2) provides for an application to a judge or court, so that 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.
Rules of Civil Procedure Apply
Thirdly, subsection 13(3) makes it clear that the Rules of Civil Procedure made under the Courts of Justice Act apply with respect to an application under this section.
Judgment
Fourthly, subsection 13(4) provides that on an application under clause 13 (2)(a), the judge may grant judgment in accordance with the terms of the agreement.
Order to Register Settlement Agreement
Fifthly, subsection 13(5) provides that on an application under clause 13 (2)(b), the registrar shall, subject to subsection 13(6), make an order authorizing the registration of the settlement agreement.
Exceptions to Enforcement
However, subsection 13(6) provides exceptions to the enforcement judgments and orders providing that 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.
Effect of Filing Settlement Agreement
Express provision in subsection 13(7) is provided for the effect of filing the settlement agreement with the registrar, so that 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.
Costs
Subsection 13(8) provides that 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.
Enforcement of Payment of Mediator’s Fees
Subsection 14 (1) 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.
Subsection 14(2) makes aforesaid section 13 enforcement rights and procedures applicable, 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.
(see blog posts Part I and Part II for other provisions of the Act.)
David Alderson, LL.B, LL.M, Q.Arb, Senior Counsel – Commercial Litigation, Commercial Arbitrator and Commercial Mediator
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