KEY TAKEAWAYS:

  • Guidance document describes the mediation process for any proceeding before the Competition Tribunal (Tribunal) by a judicial member of the Tribunal or the Federal Court
  • Mediation is voluntary, can be scheduled any time during the proceeding, and may serve to breach an impasse between the parties before significant litigation costs are incurred
  • Parties continue to have the option to mediate outside of the Tribunal
  • While there will be no obligation to pursue the mediation to a successful conclusion, any resolution reached will be binding

On June 17, 2016, the Tribunal issued a practice direction on mediation. The direction provides guidance regarding the request for mediation, the selection of the mediator, the parties’ role in setting the scope for the mediation, the mediation procedure including attendance by a client representative authorized to settle, and the intervenors’ role. Any agreement reached will be recorded and binding, and generally formalized in a consent agreement registered with the Tribunal.

The direction follows the first mediation by a judicial member of the Tribunal, which occurred in the Parkland case (see our April 2016 Blakes Bulletin: Important Developments in Canadian Merger Control and IP Matters). In Parkland, the mediation resulted in a settlement, ending a year-long litigation following a seven-month merger review and interim injunction proceeding.

The direction has a number of implications:

  • If the preferred mediator is not available or if the parties are unable to agree on one, the Tribunal can propose an alternative judicial member or other Federal Court judge. The latter option seems to undermine the benefits of having an expert Tribunal judicial member to act as the mediator.
  • Although the direction does not limit mediation to the Tribunal, it also does not clearly state that parties can use alternative measures to pursue resolution.
  • By incorporating time for mediation in the case schedule, the Tribunal’s members ultimately assigned to adjudicate the main hearing will know that the parties attempted to mediate, which may not be in one or both of the parties’ strategic interests.
  • Finally, any Tribunal-supervised mediation may delay the proceeding depending on the mediator’s availability.

Private parties in Tribunal proceedings will need to consider these implications before deciding to pursue Tribunal-supervised mediation.