Durability of Mediated Settlements and More
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In what I hope readers of this blog will consider a deft segue, I want to shift from the successful judicial mediation that I highlighted last monthto one that didn’t proceed quite so smoothly.
Deals negotiated in mediation tend to hold or, at least, that’s been the conventional wisdom. The theory is that because of the consensual nature of the process parties tend to abide by the agreements they’ve struck in mediation.
In Ontario we’ve just had a rare high profile example of a situation where that wasn’t the case. A news summary of the decision in Kidd v. The Canada Life Assurance Co. can be read here and the full decision of Justice Perrel can be seen here. Both the article and the case are worth the read for those interested in such things.
Essentially this was an Ontario class action in which the plaintiff class claimed the surplus in the Canada Life employees pension; a surplus which, at the outset of the litigation in the mid-2000’s had an estimated value of $100 Million.
A mediation of this complex litigation was conducted by Justice Warren Winkler in April 2007. Regular readers will recognize the judge’s name as he was also the mediator in the recent high profile Nortel mediation.
The settlement arising from the 2007 mediation finally received Court approval (as must all settlements of Class Actions in Ontario) in January 2012.
No sooner was the settlement approved than it became apparent that, for a variety of reasons, the real actuarial surplus in the pension had shrunk from $100 Million to $14 Million. For this and other reasons the originally approved settlement could no longer be implemented. Further procedural jousting ensued culminating in a second judicial mediation by Mr. Justice Strathy of the Ontario Superior Court in December 2012.
Read original articleTags: Canada Life Assurance Co., judicial mediation, Justice Perrel, Ontario
