Canada: Mediation In British Columbia: Does Mandatory Mediation Mean Mandatory Attendance For Lloyds Underwriters?

Last Updated: June 22 2017
Article by Karen L. Weslowski


While claims against building professionals and consultants are common, very few of those claims ever go to trial. The vast majority of claims are resolved through mediation.

In British Columbia, any party to an action can force the other parties to attend a mediation by issuing a Notice to Mediate pursuant to the Notice to Mediate (General) Regulation, B.C. Reg. 77/2013 (the "Regulation"). This raises an important issue for certain Underwriters at Lloyd's of London ("Lloyd's") who now insure a significant number of building professionals and consultants in British Columbia.

While local insurers have representatives in close proximity to the mediation who can attend at minimal expense, the same cannot be said for Lloyd's. Questions have been raised as to whether the Regulation requires a London-based Lloyd's representative to attend the mediation in person, whether it is sufficient for Lloyd's to have a local representative, such as a claims examiner, attend on their behalf, or whether Lloyd's may simply attend by phone or rely upon attendance by defence counsel, vested with settlement authority, as their representative.

Fortunately for the travel weary, the language of the Regulation and the limited case law to date suggest that, while mediation may be mandatory, in-person attendance at mediation by a London-based Lloyd's representative is not. The Regulation requirements will be met through attendance by a local claims examiner on behalf of Lloyd's.

Mandatory Mediation

The Regulation requires every party who receives a Notice to Mediate to: (1) participate in the pre-mediation conference; and (2) engage in mediation at a mediation session in relation to the action.

A party may be exempted from these requirements if all of the participants agree to excuse that party, and that agreement is confirmed by the mediator in writing. Pursuant to the Regulation, a party is not permitted to unilaterally declare that they will not be attending the mediation, regardless of that party's position on liability or relative liability exposure.

Upon application, the Regulation allows the court to grant a party an exemption from attending a mediation. However, such exemptions will be granted rarely and only where "it is materially impracticable or unfair to require the party to attend", as stated by the British Columbia Supreme Court in Matsqui First Nation v Canada, 2015 BCSC 1409.

The court in Matsqui noted that British Columbia appears to be unique among the provinces in imposing the standard of "material impracticability or unfairness" as the basis for exempting parties from mandatory mediation. This standard has received very little judicial consideration.

In Executive Inn Inc. v Tan, 2008 BCCA 93 ("Executive Inn"), the Court of Appeal noted that the section of the Regulation allowing for exemption from mediation was enacted to ensure that the court in an appropriate case would be endowed with a broad power to make orders to ensure the efficacy of the mediation process. However, pessimism and hostility on the part of parties compelled to attend a mediation are often predictable and, in and of themselves, will generally not justify exemption from the mandatory mediation process.

Definition of "Party" Required to Attend Mediation

The definition of "party" in the Regulation includes "an insurer to a party of record to the action". An "insurer" means an insurer, as defined in the Financial Institutions Act, that has provided a policy of insurance to a party in the action and, under that policy, is obligated to indemnify the party for liability imposed on the party in the action. The definition of insurer also includes a surety of the party in which a claim has been made on a surety bond related to matters in issue in the action.

The inclusion of the indemnity obligation in the definition of "insurer" raises the question as to whether an insurer who is defending on a reservation of rights falls within the definition of an "insurer". That is an interesting question that has not been considered by the courts.

Attendance at Mediation by "Representative"

The Regulation provides that a party may attend a mediation session by "representative" if "the party is not an individual" or "the party is a resident of a jurisdiction other than British Columbia and will not be in British Columbia at the time of the pre-mediation conference or the mediation session, as the case may be."

The Regulation does not contain a definition of "representative". The following provision may suggest that a representative must be someone other than the party's lawyer, as the Regulation states: "[a] party or representative who attends a pre-mediation conference or a mediation session may be accompanied by a lawyer." The alternative interpretation is that where the representative is not a lawyer, they may be accompanied by a lawyer. The issue of whether a representative and a lawyer are mutually exclusive has not been considered by the courts.

Other provisions within the Regulation, along with case law interpreting those provisions, suggest that a "representative" for the purposes of mediation need not be an in-person representative from Lloyd's.

The British Columbia Court of Appeal explained the rationale behind the non-resident provision in Executive Inn, where the court commented that this provision is "designed to ensure that generally a party out of the jurisdiction not be incommoded in purse or in personal circumstances by being required to come from outside British Columbia to attend a mediation session held here." Although not expressly stated as such, this commentary indicates that in-person attendance at a British Columbia mediation by a representative of Lloyd's is not required by the Regulation.

The express requirements for a representative attending a mediation also lead to the conclusion that an in-person representative from Lloyd's is not required. The Regulation states that if a representative attends the mediation, that representative must satisfy the following requirements: (1) be familiar with all relevant facts on which the participant, on whose behalf the representative attends, intends to rely; and (2) have full authority to settle, or have access at the earliest practicable opportunity to a person who has, or to a group of persons who collectively have, full authority to settle, on behalf of that participant. A properly instructed claims examiner can satisfy these requirements.

Mere phone attendance by a London-based Lloyd's representative may not meet the mandatory attendance requirements of the Regulation. For attendance at the pre-mediation conference, the Regulation states that a person entitled or required to attend that conference may do so by telephone "or other communications medium if the person is a resident of a jurisdiction other than British Columbia and will not be in British Columbia at the time of the conference". The Regulation contains no such exception in relation to the mediation. Of course, the parties can consent to allow attendance by phone, and this is often done at mediations without any difficulty.


The mandatory attendance requirements prescribed by the Regulation reflect the legislature's belief that a more effective and successful mediation is likely to result from the parties' personal attendance at mediation. This generally allows the parties to realize the full benefits of the mediation process.

However, to avoid excessive cost or inconvenience, parties not resident in British Columbia, such as Lloyd's, are permitted to attend by representative, which may include a local claims examiner. Practically speaking, many mediations in British Columbia are successfully conducted through attendance by the insured and lawyer vested with settlement authority, which is an acceptable practice provided that all parties have consented to this arrangement. Plaintiff's counsel in particular may be well-served to keep this in mind when considering whether to attempt to compel personal attendance by a Lloyd's representative at mediation. The expense required for such attendance may be better directed to a contribution to settle the Plaintiff's claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Karen L. Weslowski
Similar Articles
Relevancy Powered by MondaqAI
Goldman Sloan Nash & Haber LLP
The Construction Law Group
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Goldman Sloan Nash & Haber LLP
The Construction Law Group
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions