Thomas G. Heintzman, O.C., Q.C., FCIArb

Discovery Of Facts Following Mediation Impacts The Limitation Period: Ontario Court Of Appeal

In 625805 Ontario Ltd. v. Silverwood Flooring Inc., the Ontario Court of Appeal has recently held that the discovery of facts following a mediation had the effect of extending the limitation period. This decision has an important impact on the limitation period for all claims, and particularly claims arising from building projects, in which the […]

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Can Conduct Relating To A Mediation Lead To A Higher Costs Award?

In Ross v. Bacchus, the Ontario Court of Appeal recently set aside an order of the trial judge awarding a higher level of costs because of the defendant’s conduct at the mediation. This decision emphasizes that, absent proof of bad faith, courts will be reluctant, at least in Ontario, to impose costs awards relating to […]

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A Mediation Obligation Is Enforceable Says The Ontario Court of Appeal

Is a person bound to mediate before commencing an action or arbitration if the contract or applicable statute requires mediation? Or should an obligation to mediate only become effective after an action or arbitration has been commenced? And if mediation is a pre-condition to suing or arbitrating, does the limitation period run before the mediation […]

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English Courts Enforce An Obligation To Mediate And Negotiate

The articles on this site have often alerted the readers to the hidden dangers of mediation and negotiation clauses in construction contracts. The principle danger is that these sorts of clauses may be unenforceable, for two reasons. The wording of the particular clause may be drafted in such a way as to create no enforceable […]

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The Supreme Court Of Canada Holds That A Mediation Agreement Doesn’t Preclude Proof That There Was Or Wasn’t A Settlement

The Supreme Court recently released its decision in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35. In that decision, the Supreme Court dealt with two principles relating to mediations. The first principle is that settlement discussions are inherently confidential and therefore privileged from disclosure.  This principle is not based on statute law. Rather, […]

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Does An Informal Agreement To Mediate Stop The Limitation Period From Running?

Mediation seems like apple juice:  no harm in taking it and it might do some good. But mediation has a trap: — the limitation period. If a party enters into mediation and lets the limitation period go by, then that’s real harm. In a number of reported cases, one party to a mediation did exactly […]

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