When can the Court strike a party’s pleading for its failure to attend mandatory mediation in Saskatchewan?

In Carpere Development Corp. v Aaron Kevin Donkers and 488 Farm Corp., 2026 SKKB 173 [Carpere], the Court of King’s Bench for Saskatchewan set down the legal test for when a pleading may be struck out under s. 7-1(10) of The King’s Bench Act, SS 2023, c 28 [KBA] for a party’s failure to attend mandatory mediation.

The legal test set down in Carpere considers whether the Court has discretion under the KBA to strike the pleading, and whether the Court should exercise its discretion and strike the pleading based on several factors that inform the interests of justice. 

Background

In Carpere, Carpere Development Corp. (the “Plaintiff”) and Aaron Kevin Donkers (the “Defendant”) agreed to a date for the mandatory mediation. In civil matters in Saskatchewan, the parties are required to attend mandatory mediation after the close of pleadings before proceeding with an action. On the eve of the mediation, the Defendant advised the mediator, without explanation, that he would not attend the mediation scheduled for the next morning.

The Defendant thereafter made no attempts to reinitiate the mediation process.

The mediator filed a certificate of non-compliance with the Court for the Defendant’s failure to attend the mediation. Section 7-1(10) of the KBA provides that when a certificate of non-compliance is filed, the compliant party may apply to the Court to strike the non-compliant party’s pleading or order the non-compliant party to attend a mediation session and adjourn the application. The Court may exercise its discretion and strike a non-compliant party’s pleading unless the non-compliant party convinces the judge that the non-compliant party had a reasonable excuse for non-attendance and that it would be inequitable to strike the pleading.

The Plaintiff applied to the Court to strike the Defendant’s statement of defence or, in the alternative, to order the Defendant to attend a mediation session and adjourn the application to strike. The Plaintiff also asked for costs. The Defendant did not submit any evidence or argument, or attend the chambers hearing.

Decision

The Honourable Justice A.S. Davis (the “Chambers Judge”) granted the Plaintiff’s alternative relief and ordered the Defendant to attend a mediation session, and awarded the Plaintiff its costs related to the mediation session. In his reasons, the Chambers Judge set down the test for when the Court may strike a pleading for non-attendance at mediation.

The Chambers Judge started by observing the importance of mandatory mediation as part of the litigation process in Saskatchewan. He noted:

[9]…The legislature and the Courts have sought to improve access to justice and the just resolution of claims by implementing processes to divert matters from court where possible, or to promote more focussed litigation where matters do proceed in court. Mediation forms a core plank in fulfilling these objectives.

The Chambers Judge also observed that the KBA gives the Court the discretion to strike a pleading for a party’s non-attendance at the mediation. The question for the Chambers Judge was when the Court should exercise that discretion.

The Chambers Judge noted that an application to strike for non-attendance at mediation is similar to an application to strike for want of prosecution “because both concern striking pleadings for reasons related to a party’s conduct and fairness to the other side, rather than to the merits of the claim” (para 17). He observed that in an application to strike a claim for want of prosecution the Court may consider a non-exhaustive list of factors when deciding whether it is appropriate to strike the claim. The Chambers Judge concluded that a similar test should be used in an application to strike for non-attendance at the mediation under s. 7-1(10) of the KBA. The Chambers Judge then set down a two-part test for determining whether to strike a pleading for a party’s non-attendance at the mediation.

First, the Court must consider whether it has the discretion under the KBA to strike the non-compliant party’s pleading. The Court has discretion to strike a pleading if the non-compliant party fails to satisfy the Court that the party had a reasonable excuse for non-attendance and that it would not be inequitable to strike its pleading. Second, the Court must consider whether to exercise its discretion to strike the pleading based on the interests of justice, by considering several factors: (i) the prejudice to the non-offending party; (ii) the reasons for the non-attendance; (iii) the context in which the non-attendance occurred; (iv) the stage of the litigation; (iv) the length of the delay; (v) the history of the parties’ conduct; and (vi) any broader public interest in not striking the pleading and allowing the dispute to be adjudicated.

Whether the Court strikes the non-compliant party’s pleading, or opts instead to schedule another mediation and adjourn the strike application, the Court also retains discretion under the KBA to order the non-compliant party to pay costs to the innocent party for not attending the original mediation.

Commentary

Carpere is the first decision of the Court of King’s Bench for Saskatchewan to articulate a test for when the Court may exercise its discretion and strike a pleading for a party’s non-attendance at the mandatory mediation under s. 7-1(10) of the KBA. The decision provides some certainty in the law by helping litigants to understand the consequences for non-attendance at mediation and supplies innocent parties and their legal counsel with a test for striking non-compliant parties’ pleadings.

McDougall Gauley LLP’s civil and commercial litigation teams have experience with all parts of the civil and commercial litigation process including mandatory mediation obligations under the KBA and alternative dispute resolution processes in litigation.