This case involved a motion to redact large portions from a court appointed assessor's report which cited, at length, facts learned through interviewing the mediator from what was intended to be a closed mediation. Justice Mackinnon examined the facts and circumstances under which the parties waived privilege, and ultimately concluded that the Applicant gave consent to open the mediation.

Background

In July to September and in December 2011, the parties were involved in closed mediation, conducted by Dr. Fidler, to mediate their matrimonial matter. Dr. Fidler's mediation agreement, signed by both parties, expressly stated that, without the consent of both parties, no admission or communication in the course of mediation would be admissible in any legal proceeding, and moreover, that the mediator would not be called as a witness by or on behalf of either parent in a legal proceeding.

By the time the mediation began, the parties had commenced the custody and access assessment with Dr. Sutton. In contrast to Dr. Fidler's agreement, the agreement with Dr. Sutton, signed by both parties in December 2010, expressly and clearly identified the assessment process as an open one, stating that Dr. Sutton had the right to obtain information from the court, counsel and both parties and provide information received from all sources to the Court, counsel and the other parent. Furthermore, clause 16 of the agreement stated that "there is no confidentiality or privilege in a custody/access assessment."

Dr. Sutton's initial recommendations were released in June 2011, prior to the commencement of mediation. When the parenting issues were not subsequently resolved in mediation, Dr. Sutton was asked to complete a "reassessment" in order to complete his report. In the course of the reassessment, he determined that it would be useful to receive information from the mediator, and decided to approach the parties and their counsel about obtaining their consent. Although the Applicant's counsel expressed some concern, the Applicant ultimately signed the consent on March 29, 2012.

Subsequently, in a motion brought during trial on March 6, 2013, the Applicant sought to redact portions of Dr. Sutton's notes, records and assessment report that derived from closed mediation conducted by Dr. Fidler.

The Court's Analysis

At the motion, Justice MacKinnon had the difficult task of evaluating conflicting testimony, assessing credibility, and ultimately determining whether consent to opening the mediation was voluntarily obtained. The Applicant testified that Dr. Sutton informed her that the purpose of signing the consent was so that he could obtain information from Dr. Fidler, but that it would not "open" up the mediation and create an ability to use the information obtained in court. Dr. Sutton, on the other hand, testified that it was impossible that he would have told the Applicant that he would receive information from the mediator, but that the mediation would remain closed and the information he received would not be used in court.

Ultimately, Justice MacKinnon accepted Dr. Sutton's evidence, noting that, if the Applicant's evidence was to be believed, Dr. Sutton would be contradicting his Retainer Agreement which clearly spells out that any information received by him is not confidential and could be disclosed in his report.

In the end, however, the onus was on the Respondent, the party seeking to rely on portions of the assessment report and examination of Dr. Fidler, to establish that the Applicant waived the privilege. Moreover, the court acknowledged that it should only find waiver in the most clear-cut of cases.

Although the consent signed by the Applicant did not expressly identify that the information Dr. Sutton received could be disclosed in court, Justice Mackinnon concluded that Dr. Sutton clearly explained to the Applicant that his request to interview the mediator was unusual, and that the effect of agreeing to this would be to open up the mediation. Justice Mackinnon further noted that it was not a hurried or impulsive decision on the part of the applicant. Accordingly, the Applicant waived the privilege attaching to the communications made in mediation. Interestingly, Justice Mackinnon also noted that the Applicant "impliedly waived the mediation privilege" by sending lengthy written submissions to Dr. Sutton in July 2012 giving her perspective on the mediation, knowing that such information would be considered in the assessment process.

Acknowledging briefly the strong policy reasons for fostering the use of closed mediation in custody cases as an alternative to court, as well as the unique circumstances of the case before her, Justice Mackinnon determined that in this case it was appropriate to depart from the normal practice of not seeking any information pertaining to closed mediation, and that both parties had freely consented to same.

The lesson from this case, of course, being that a closed mediation may become an open mediation if both parties consent, provided consent is given voluntarily.