Québec – trial judge on own initiative quashes subpoena issued to mediator

Without need for application by either the opposing party or the proposed witness, Madam Justice Céline Gervais in PC Avocats inc. (Perras Couillard Avocats) v. Perreault, 2020 QCCQ 1972 quashed a subpoena sent to the attorney who served as mediator in court-supported mediation.  In quashing it proprio motu, Gervais J. explained to the self-represented litigant that the mediator was not compellable and all that transpired during the mediation was confidential.  Gervais J. also commented on the role/liability of lawyers in a client’s own decision to engage in mediation and negotiate a settlement.

The initial dispute stemmed from a March 2018 claim drafted and filed by Defendant in Court of Québec, Small Claims Division seeking reimbursement of the commission paid to real estate brokers for the sale of his residence in April 2017.  Defendant claimed that the brokers had had him sign an exclusive brokers agreement despite already knowing the interested buyers.

Parallel to filing his claim, Defendant sought assistance from the Organisme d’autoréglementation du courtage immobilier du Québec (“OACIQ”), Québec’s self-regulating authority for real estate brokerage.  The OACIQ confirmed that the manner in which the brokers had proceeded was not the correct one.  It concluded that there had been a failing on the brokers’ behalf and put a note in their file.  The brokers undertook to following some related training.

The hearing in Small Claims Division of Defendant’s claim against the brokers was scheduled for February 5, 2019.  Prior to that hearing, Defendant consulted two (2) representatives of Plaintiff law firm on January 9, 2019 for assistance in preparing for the hearing.  On January 14, 2019, Defendant sent Plaintiff new exhibits which Defendant wished to add to his file.  Further to the initial meeting and those new exhibits, Plaintiff prepared a new list of exhibits as well as a list of witnesses to subpoena, including the OACIQ representative.

On the eve of the February 5, 2019 hearing, Defendant met up again with one (1) of Plaintiff’s lawyers to go over Defendant’s preparations. In reviewing the additional exhibits against the proceedings drafted by Defendant, the lawyer noted an important mistake in the pleadings drafted by Defendant.  Defendant had named the two (2) individual brokers personally and not their corporation.

The lawyer prepared a letter for Defendant’s signature requesting a postponement and leave to amend his proceedings which Defendant signed and delivered to the courthouse that same day. The next day, as is the custom, the parties to that small claims action were invited to mediate and they did.  The postponement and amendment were not presented. Defendant and the brokers negotiated a settlement for a sum which Defendant considered ‘minimal’.

After settling at the mediation, Defendant then contacted Plaintiff to share his dissatisfaction with what he considered was late notice of the procedural defect in the pleadings Defendant himself had drafted.  Plaintiff’s invoice which issued the next month remained unpaid and Plaintiff filed an action for payment.

For the hearing on the invoice, Defendant had, through the Small Claims Division, subpoenaed the attorney who had conducted the court-supported mediation between him and the brokers in his first file.

Without application by Plaintiff or the proposed witness, Gervais J. noted in her reasons that she, on her own initiative, quashed the subpoena sent to the mediator-attorney.  She explained to Defendant that everything that happened in mediation was confidential and that the mediator could not be compelled to testify on what was said or the reasons for which Defendant had accepted to settle the file.

On the merits of the dispute between Defendant and Plaintiff for the legal services provided, Gervais J. determined that Plaintiff had recommended a postponement of the hearing with the brokers and that Defendant had decided otherwise, choosing instead to engage in the mediation.

Gervais J. further determined that it was not possible to conclude that the settlement Defendant had negotiated in mediation was less favourable than what he might have obtained by judicial decision.  Gervais J. also noted that one did not know whether the amendment sought would have prevented the brokers from proceeding and whether the postponement would have been granted.

Gervais J. found no fault in the services provided by Plaintiff or the value sought for them, despite acknowledging that one could understand Defendant’s disappointment.  She observed that it was not possible to establish a causal link between the notice given the eve of trial and the less than satisfactory amount Defendant negotiated in the mediation. She concluded that “[informal translation] The mediation constitutes a sort of event which was not under [Plaintiff’s] control”.

Gervais J. granted Plaintiff’s action and ordered Defendant to pay the invoice.

urbitral note – First, despite the nominal value in dispute, the reasons confirm, absent other facts or applicable rules, that a court can and will quash a subpoena sent to a mediator without waiting for an application by either an opposing party or the witness, thereby enforcing the rules applicable to the mediation. 

Second, the court confirms that the choice to undertake mediation rested with Defendant and, pursuant to that choice, placed the result of the mediation beyond the control/responsibility of Plaintiff.

Third, small claims divisions restricts lawyers appearing on behalf of litigants.  Subject to specific terms and highwater exceptions, article 542 C.C.P. stipulates that (i) individuals must self-represent and (ii) corporations, partnerships and associations can only be represented by an officer or employee in their sole service who is not a lawyer.  Both sets of litigants may still consult a lawyer, including for the purpose of preparing the presentation of their case.  This difference may have motivated Plaintiff’s choice to reduce the claim from $78,000.00 to $15,000.00 but not the resistance to arbitration.

See Respecs inc. v. Marchés Pépin inc., 2020 QCCQ 148 for a recent demonstration of the Court of Québec’s vigilance against litigants attempting to retain lawyers to represent them. That prohibition, among others, ensures access to a simplified, easily accessible, more expedited and less costly administration of justice without eliminating rules of natural justice. In that case, Mr. Justice Luc Hervé Thibaudeau reaffirmed a line of earlier Court of Québec decisions adhering to guidance in Lavigne v. 6040993 Canada inc., 2016 QCCA 1755.  In that case, the Court of Appeal required courts to take an innovative approach focused on efficacy, speed and simplification of the proceeding where possible.

Fourth, for a recent and more significant, complex case involving the role of lawyers in mediation and a commensurate analysis, see Alliance v. Gardiner Roberts, 2020 ONSC 68 and the related, subsequent costs decision in Alliance v. Gardiner Roberts, 2020 ONSC 1580.