The Supreme Court of British Columbia recently released a decision in Matsqui First Nation v. Canada (Attorney General), 2015 BCSC 1409, that has application to the resolution of Aboriginal rights claims, as well as the mediation of civil claims generally, before the Supreme Court of British Columbia. It confirms the very high threshold to be met in seeking an exemption from attendance at a mandatory mediation on the basis that it would be “materially impracticable or unfair to require the party to attend”.

The decision arose in the context of an application by the federal Crown pursuant to section 23(c) of the Notice to Mediate (General) Regulation (the “Regulation”) for an order that it was exempt from attending a mandatory mediation triggered by a Notice to Mediate served by the Plaintiff Matsqui First Nation (the “Matsqui”). The Crown argued that in the unique circumstances of the case, mediation was, in the words of the subsection, “materially impracticable”.

Once a Notice to Mediate is served, it becomes mandatory for each party to a lawsuit to “engage in mediation”. The Regulation requires attendance of the parties at a mediation session, if not in person, then by way of a representative who must “have full authority to settle, or have access at the earliest practicable opportunity to a person who has ... full authority to settle, on behalf of that participant”.

Section 23 of the Regulation contemplates applications to court for directions respecting the terms or conditions on which a mediation might proceed, the timing and postponement of same, and the exemption of parties from attendance where the same would be “materially impracticable or unfair”.

The Matsqui claim alleged that the Department of Fisheries and Oceans (“DFO”) infringed the Matsqui domestic salmon fishing right and sought relief which included: a declaration that the Matsqui have an Aboriginal right to fish for salmon for domestic purposes within a specified area; a declaration that the denial of fishing licences constituted an unjustifiable infringement of an Aboriginal right; and an award of damages for infringement.

The Crown argued that the case raised important issues that required resolution in court and which therefore made mediation impracticable. The case was said to be a “test case” with broad implications. The Crown advised that, quite apart from the need for judicial precedent in the test case, as a practical matter the DFO did not have the “mandate” or authority to resolve claims involving the definition of a constitutional right or the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown. The resolution of such claims for declaratory relief, which the Crown considered highly improbable at a mediation in any event, would almost certainly require approval at the highest levels of government. Given the fact that a federal election was underway, the Crown submitted that there was in effect no one presently available who had “full authority to settle” and that would remain the case up to and beyond the trial date. As a further practical matter, then, the Crown suggested it could not comply with the requirements of the Regulation and so mediation before trial was impracticable on that ground as well.

The Court observed that applications for an exemption from attending a mandatory mediation are rare. Since the Regulation came into force in 2001, the Court noted that there appeared to have been only one other case where an application was made to exempt parties from attending a mediation process which had been triggered under the Regulation.

The Court referred to Executive Inn Inc. v. Tan, 2008 BCCA 93, in which the British Columbia Court of Appeal upheld the lower court’s rejection of an exemption application that was based on a combination of challenging international logistics, deep pessimism as to outcome, and outright hostility between the parties. In the lower court decision, the court had observed:

“… settlement rates in all forms of mediation, including mandatory mediation, are high. Pessimism and hostility on the part of parties compelled to attend a mediation are often predictable and, in and of themselves, may not justify exemption from the mandatory mediation process ....”

While acknowledging that the settlement of the Matsqui claims may confront formidable obstacles, the Court stated that:

“The beauty of mediation lies in its confidentiality and flexibility. With the assistance of a skilled mediator, the parties are free to speak to each other directly and to frankly express their concerns and interests without fear of prejudicing the litigation should the matter not settle. That is to be encouraged. Empathy and apology can and often does play a powerful role. Seemingly intractable positions become less so. The legal issues framed in the pleadings frequently do not reflect the real interests or concerns motivating the litigants. Creative remedies not available to the court can be forged to bridge differences. Important relationships can be repaired.”

The Court concluded that while the declaratory relief respecting a perceived Aboriginal right sought by the Matsqui was not the sort of remedy that is readily available in a mediation process, the service of the Notice of Mediation by the Matsqui led to a presumption that the Matsqui believed there was some basis for settling the claim available and that the parties had little to lose by confidentially exchanging and explaining perspectives and interests. If nothing else, perhaps some accommodations and efficiencies could be reached regarding evidence or other trial process that may reduce mutual inconvenience and cost. At best, some sort of creative resolution in principle could emerge, albeit subject to later ratification by superiors if necessary. At worst, the Court found that the case would simply proceed to trial in a couple months’ time with an interim “loss” of one or two days’ effort. Accordingly the application for an exemption from attending a mandatory mediation was dismissed.