- the claim is resolved;
- the attempted resolution process is terminated; or
- a party terminates or withdraws from the agreement
S. 11 also states that a person or entity that provides resolution of claims or assistance in resolving claims is an independent third party no matter how it is funded.
In other words, both the basic and the ultimate limitation periods do not run from the date both sides of a dispute agree to have a mediator assist them in resolution. “This statutory ‘time out’ is useful if you act for a plaintiff — but perhaps not if you act for a defendant. Or, at least, one should be wary of s. 11 since, as noted above, there is still the duty to settle,” Rose said.
Case law on settlement negotiations and limitation periods
Counsel in common law provinces, such as Ontario, must also take note of new case law in the relationship between settlement negotiations and limitation periods. Rose gave two cases for this matter, and their principles:
- A formal mediation agreement is not required to trigger s. 11 (Sandro Steel Fabrication Ltd. v. Chiesa, 2013 ONCA 434)
- S. 11 does not apply to the deadline for preserving construction liens (Logger Town Homes Ltd. v. Sadeghian, 2013 ONSC 6056).
Other recent case law includes the case of Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54. In this case, the Supreme Court held that the settlement exception, applicable in the context of commercial mediations, also applies to family mediations. Settlement exception allows communications and information — which are confidential as a general rule — to be disclosed, if it’s necessary to prove the existence or scope of a settlement agreement.
Apology legislations
When it comes to settlement negotiations, asking for an apology is a hot topic as this may affect the course of the negotiations, and even the liabilities of the defendant. Since a sorry or apology may be said in abrupt and stressful situations, such as accidents, counsel must be aware of apology legislations.