The Supreme Court of British Columbia has dismissed an application by a former executive of JDS Energy & Mining Inc. to postpone a court-ordered mediation, rejecting arguments that the process would be unfair due to incomplete disclosure.
The worker, who served as chief operating officer of a now-defunct drilling and blasting division at JDS, had sought to delay the mediation under the province’s Notice to Mediate (General) Regulation, arguing he lacked key documents necessary to participate meaningfully in the session.
In its oral decision, the court acknowledged the applicant’s concerns but concluded that sufficient safeguards were in place to allow the mediation to proceed. “It may not be successful, but it may well allow the issues to be narrowed such that the parties can stop the repetitive trips to chambers,” the court said.
Background to the dispute
The case arises from a 2021 agreement between the worker and JDS to establish a new drilling and blasting joint venture. The deal, outlined in a letter of intent, gave the worker a 49 percent ownership interest, with JDS holding 51 percent. He also signed an employment agreement naming him as COO of the new division.
In April 2023, the worker claimed he had been constructively dismissed and filed a civil claim in November of that year. JDS responded in January 2024 and has since made multiple procedural applications, including an unsuccessful motion to strike the notice of civil claim.
The worker, identified as D.M., alleges that JDS has failed to provide adequate financial and business records necessary to understand the company’s position and to prepare for meaningful negotiations. He argued that participating in mediation at this stage would be akin to “sitting in the mediation effectively blindfolded.”
Disclosure concerns and scheduling
According to the court, JDS has already disclosed significant information, including financial records from related entities, and has granted D.M. two full days of access to its accounting system. The company also offered to produce a representative for discovery on May 5, and an additional document production application is scheduled for April 7.
D.M.’s counsel maintained that further disclosure was needed before a productive mediation could occur and requested a short delay. They emphasized the need for a complete discovery process and suggested the possibility of requiring more than one day for examination of JDS witnesses.
JDS, however, took the position that mediation should not be contingent on the completion of disclosure. It warned that allowing such a delay would create a de facto exemption from the Regulation for any party that claimed disclosure was incomplete. The company also noted that the mediation could not proceed before June under the current timeline, giving both sides additional time to prepare.
Court finds safeguards are sufficient
In denying the request to postpone, the court pointed to several provisions in the Notice to Mediate Regulation that protect the integrity of the process. These include requirements for the exchange of documents and statements of facts and issues at least 14 days prior to the mediation, as well as provisions for pre-mediation conferences to address organizational matters.
“There are safeguards in the Regulation process,” the court said. “These safeguards, combined with the pending document production application, the offered examination for discovery of a representative of JDS, the document disclosure that has been made, the financial information that has been provided, and the access to JDS’s accounting system that has been offered are sufficient, in my view, to allow Mr. McCaw to participate fairly in a mediation.”
The court also cited prior case law emphasizing that even unsuccessful mediations can yield benefits by narrowing issues and reducing trial costs. Quoting Matsqui First Nation v. Canada (Attorney General), the court said that “getting together to refine the legal issues and plan the next court steps can also result in time and cost savings.”
In conclusion, the court said it was “not convinced” by D.M.’s arguments, finding that the requested delay would risk postponing the mediation indefinitely. The application was dismissed, with costs awarded in the cause.
For more information, see McCaw v JDS Energy & Mining Inc., 2025 BCSC 1450 (CanLII).
