In Karolidis v. Orthotic Holdings Inc., Justice Chalmers was assessing costs after the acceptance of a Rule 49 offer which was accepted prior to a summary judgement motion .
In discussing what various offers were made during the course of the litigation, the Judge said the following :
“At the mediation on March 24, 2021, the Defendant made an offer, which was 7.7 months’ notice, which was less than the 12 months’ notice offered at the time of termination. ”
Rule 24.1.14 of the Rules of Civil Procedure reads as follows:
“All communications at a mediation session and the mediator’s notes and records shall be deemed to be without prejudice discussions .”
Questions to ponder;
1. Does Rule 24.1.14 mean that the Judge ought not to have considered any offer made at the mediation ?
2. Or, because the Rule only makes the contents of the mediation into a without prejudice discussion and does not explicitly bar it from being revealed to the Court, the Court can consider the contents of the mediation offer just like it can consider any offers made outside the mediation?
3. If the parties signed a mediation agreement where they agreed to keep the contents of the mediation strictly confidential, would that have made a difference ?
I look forward to your thoughts .