COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Executive Inn Inc. v. Tan,
	2008 BCCA 93

Date: 20080222

Docket: CA035750; CA035751

CA035750

Between:

Executive Inn Inc. and Executive Inn Inc.

doing business as Executive Hotels and Resorts

Respondents

(Plaintiffs)

And

688571 British Columbia Ltd., 0700439 B.C. Ltd., Song Kim Chew, Doris Puay Khee Chia, Huag Leong Peter Wee, Ming Yee Chang, Chee Horng Lee, Mei Lin Lee, Joo Hiang Tan, Loh Choo Tan, Chee Ming Loo, Bee Fah Yong, Fathil S. Ismail, John Ka Chun Lau, Thai Sang Tham, Soon Lee Chua, Ah Low Foo, Moi Young, Hut Chuan Tan And Sew Lan Chan

Respondents

(Defendants)

And

Geok Leng Tan, Lye Eam Tan, Toong Jin Lam, Lee Hua Catherine Beng, Peck Kiat Chee, Chong Yeow Peh, Ouan Ying Sau, Lee Lang Maria Yeo, Khoon Wah Alfred Tan, Yvonne Tan, Teow Hock Ong, See Wah Ong, Arvindrai Ramanlal, Surendra Ramanlal, Bhupatrai Ramanlal, Deborah Ann Chang, Tee Leong Lim, Fooi Pen Lew, Victoria Huey Y. Tham, Tjungwanara Njoman, David K.S. Goh, Giny H.P. Si, Tuck Fai Tham, Ernest F.P. Tham, Fee Seng Chou, Selina Poh Kim Chua, Lilis Setyayanti, Chao Chong Christopher Chang, Gake Poh Yeoh, Teck Sim Bridget Tan, Kwi Lin Yeo, Andrews Alianto, Cheng Boon Seah and Li Choon Quek

Appellants

(Defendants)

CA035751

Between:

Le Soleil Hotel & Suites Ltd.

Respondent

(Plaintiff)

And:

Zul Somani, Sharookh Daroowala

and Sunbelt Hotel Management Services Ltd.

Respondents

(Defendants by Counterclaim)

And:

Song Kim Chew, Doris Puay Rhek Chia, Peter Huat Leong Wee, Ming Yee Chang, Chee Horng Lee, Mei Lin Lee, Joo Hiang Tan, Loh Choo Tan, Chee Ming Loo, Bee Fah Yong, Fathil Sulaiman Ismail, John Ka Chun Lau, Lydia Lai-Ying Ho, Ah Kow Foo, Moi Young, Hut Chuan Tan and Sew Lan Chan

Respondents

(Defendants)

Before:	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Hall
	The Honourable Mr. Justice Chiasson

Oral Reasons for Judgment

D. Lunny and R. Hatch	Counsel for the Appellants
M. J. Wagner	Counsel for the Respondents, Executive Inn Inc. and Executive Inn Inc. doing business as Executive Hotels and Resorts
A.I. Nathanson and K.L. Grant	Counsel for the Respondent, Le Soleil Hotel and Suites Ltd.
Place and Date of Hearing:	Vancouver, British Columbia
	20 February 2008
Place and Date of Judgment:	Vancouver, British Columbia
22 February 2008

[1]                HALL, J.A.: This is an appeal by the appellants from an order of Dickson J. pronounced on December 21, 2007.  Litigation between the parties commenced in 2002.  It concerns a dispute about the management of a strata hotel located on Hornby Street in Vancouver, British Columbia.  The actions are currently set to be tried together in the month of May 2008.  The proceedings to date have generated a considerable amount of litigious activity in the Supreme Court and in this Court.  The judge who made the order appealed from has been the case management judge of the litigation for some time.

[2]                A chronology of the history of matters is as follows:

CHRONOLOGY OF LITIGATION

[3]                The appellants, who are represented by counsel, seek to challenge the order of Dickson J. requiring the appellants to personally attend at a mediation session to be held in Singapore.  A substantial majority of the strata lots in the hotel property are owned or co-owned by residents of Singapore.  None of the individual appellants reside in British Columbia.

[4]                The disposition made on December 21, 2007, on application by the respondents, provided that the parties to the actions ought to participate in a mediation session in Singapore before a British Columbia mediator, Gordon Sloan; that the mediation should occur no later than March 14, 2008; and that all parties to the litigation who are natural persons be required to attend the mediation session.  Leave to appeal this order was granted on February 6, 2008, by a chambers judge and the hearing of the appeal was expedited to February 20, 2008.  The appellants on this appeal raise the issue of whether or not the chambers judge (Dickson J.) possessed the jurisdiction to order that a mediation session pursuant to the Notice to Mediate (General) Regulation (the "Regulation") should be conducted outside of British Columbia and to order non-residents of British Columbia to personally participate in such a session.  Preliminary steps have been taken in the mediation process and I understand that the mediation is tentatively scheduled to proceed in Singapore on March 9th and 10th.  Around that same time, it is contemplated that examinations for discovery of a number of parties will occur in Singapore.  It appears to make sense to hold these discoveries in Singapore since, as noted, this is the residence of a great majority of the parties to this litigation.

[5]                In the proceedings before Dickson J. there was filed an affidavit of Mr. Daroowala.  He said this in paras. 7 and 8 of his affidavit:

7.         It is my opinion, and has been for quite some time, that the most sensible resolution to the broader dispute lies not in the courts but in a fair commercial arrangement.  Over the years, different judges and masters in related cases have commented on the desirability of settling either individual actions or the larger dispute.  I have been actively involved in these proceedings since the outset, and although settlement talks have been conducted, at no time has a professional, independent mediator been involved in an attempt to resolve matters.  There has never been a time when all or even a majority of the defendant owners have been in a room with representatives of the Plaintiff to conduct face to face discussions.  Previous global settlement discussions have all been with a few representatives of the defendants.  Where the Plaintiff has been able to open direct communications with individual owners, we have had good success in reaching settlements.  The owners with whom we have settled have been generally satisfied with the results, and indeed, they typically have leases that are renewable annually so they have the ability to remove their units from the Hotel operations if they are dissatisfied with the returns or our treatment of them.

8.         The ability to meet directly and face to face with each of the remaining defendant owners, with the assistance of counsel and a mediator, is the primary reason why the Plaintiff and Defendants by Counterclaim wish to proceed to mediation.  On the other hand, I am extremely pessimistic that a mediation session without the presence and participation of the individual owners would have any realistic chance of success.

[6]                In the course of her reasons, Dickson J. said this:

[30]      In this case, despite the defendants’ pessimism and hostility, I am satisfied that mediation holds a reasonable prospect of advancing this complex litigation and contributing to the potential savings of significant fees, expenses and judicial resources, which is in the best interests of all concerned.  This is particularly so given the relatively advanced stage of the litigation and the fact that a professional mediator will, for the first time, be involved. In my opinion, it would not be materially impracticable or unfair to require the defendants to attend.

. . .

[33]      The Actions are scheduled to be tried together given the substantial overlap in the facts and issues that arise in both.  This procedure was agreed by the parties in an obvious and practical attempt to achieve savings in cost and time.  Although the Regulation does not expressly provide that two proceedings may be mediated together, in my view, the court's discretion to direct the time, terms and conditions of mediation, pursuant to section 23(a), is sufficiently broad to permit such an order.  For the same reasons the Actions are being tried together, I order that the pre-mediation conference and Mediation in both Actions proceed together, at the same time and place.

[34]      The Regulation does not expressly limit the possible locations at which a mandatory mediation may be conducted. On the contrary, section 32 provides:

The mediator may conduct a pre-mediation conference and the mediation at the location and in any manner he or she considers appropriate to assist the participants to reach a resolution that is fair, timely and cost-effective.

[35]      In addition, as previously noted, section 23(a) of the Regulation provides:

23        On an application, the court may direct that

(a) the mediation proceed at the time or times and on the terms and conditions, if any, that the court considers appropriate.

[36]      Despite these provisions, the defendants submit the Regulation contemplates that the pre-mediation conference and mediation session may be conducted only in British Columbia.  They note, in support, that section 16(b)(iv) permits a party who does not reside in British Columbia to attend by representative and section 23(a) does not specifically identify location as a term or condition concerning which court orders may be made.  In these circumstances, the defendants say the court has no jurisdiction to order that the Mediation take place in Singapore.  In the alternative, even if the court has jurisdiction to make such an order, and does so, the defendants have an unfettered right, pursuant to section 16(b)(iv), to attend by representative.

[37]      Although I accept that section 16(b)(iv) of the Regulation implicitly assumes a pre-mediation conference and mediation will take place in British Columbia and non-resident parties are permitted to attend by representative, I do not accept that these assumptions necessarily limit the court’s discretion in the manner proposed.  Rather, in my view, sections 16, 23, and 32 of the Regulation must be read together in a purposive fashion, taking into account the Regulation’s underlying goals.

[38]      The goals of the Regulation include contributing to the prospect of resolving litigation by means of mandatory mediation in a manner that is timely, cost-effective, and fair in the circumstances of the case.  In some cases, an out-of-province mediation attended personally by all parties may be required in order to achieve this goal.  In my view, given the Regulation’s goals and the breadth of its language, the discretion conferred by section 23(a) is sufficiently broad for such an order to be made.

[39]      In this case, I am satisfied that it is appropriate for the Mediation to be conducted in Singapore and for all defendants who are natural persons and not legally or otherwise disabled to be required to attend.  The vast majority of the defendants reside in or near Singapore and neighbouring Malaysia and, as evidenced by their position regarding discovery venue, it would be less expensive and more convenient for them to attend a mediation in Singapore, rather than in Vancouver, if their personal participation is required.  That is particularly true in certain cases, given the plaintiffs’ counsel’s offer to remain to conduct the outstanding examinations for discovery if the Mediation in Singapore does not succeed.

[7]                In this case, the litigation is taking place in British Columbia and is being case managed by the judge who made the orders under appeal.  The appellants are participants in this litigation and because of that amenable to the jurisdiction of the courts of British Columbia.  I do not see this case as raising any issue of extraterritorial enforcement of orders of a British Columbia court.  The only jurisdiction involved I should think is the in personam jurisdiction over the litigants.  The salient issue in this appeal is the interpretation of the relevant Regulation. 

[8]                The appellants say that the proper construction of the Regulation should lead to the conclusion that the orders made at first instance were invalid.  They submit the court cannot order that a mediation occur outside British Columbia.  The sections of the Regulation I consider to be of particular relevance are ss. 15, 16(b)(iv), 23(a) and (c) and 32.

15  Unless relieved under section 22 or 23(c) of the obligation to attend,

(a)  each party who receives a notice under section 14 must participate in the pre-mediation conference, and

(b)  each party to the action must engage in mediation at a mediation session in relation to the action.

16  Despite section 15 but subject to section 20, a party referred to in section 15 may

[…]

(b) attend one or both of a pre-mediation conference and a mediation session by representative if

[…]

(iv)  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.

23  On an application, the court may direct that

(a)  the mediation proceed at the time or times and on the terms and conditions, if any, that the court considers appropriate,

[…]

(c)  one or more of the parties is exempt from attending one or both of a pre-mediation conference and a mediation session if in the court's opinion it is materially impracticable or unfair to require the party to attend.

32  The mediator may conduct a pre-mediation conference and the mediation at the location and in any manner he or she considers appropriate to assist the participants to reach a resolution that is fair, timely and cost-effective.

[9]                In the ordinary course of events, I should think it would be the case that a mediation provided for under the Regulation would occur in British Columbia.  The question raised by this case is whether that is the only location where a mediation proceeding may occur.  The appellants submit that it was not open to the judge to make the order she did relying upon the provisions of s. 23 of the Regulation.  They say that a mediation may only be held in British Columbia having regard to the terminology of the Regulation, in particular ss. 15, 16 and 32 of the Regulation.  In counsel’s submission, s. 23 may have some role to play concerning timing of a mediation session or sessions but cannot have the broad reach as interpreted by the chambers judge to give her jurisdiction to order an offshore mediation and to require parties not resident in Singapore to attend.

[10]            The respondents submit that the order as made was valid.  They say that s. 23 should be interpreted as a type of general discretionary or override provision.  They urge this Court to interpret the Regulation as a cohesive whole.  If that is done they submit there is no conflict between the provisions of ss. 16 and 23.  They suggest a judge can order parties to attend in person whether a mediation is held in British Columbia or elsewhere and that s. 23 should be seen as endowing the court with a broad jurisdiction to make any necessary orders to ensure that a mediation process is efficacious. 

[11]            There is authority for the proposition that legislative provisions, whether in separate acts or contained in one act, should, if possible, be construed as not in conflict with each other.  The courts seek to interpret different statutes and different provisions in a single statute dealing with a similar subject matter so as to avoid conflict.  Provisions will not be seen to be inconsistent if both can properly stand together: Toronto Railway Co. v. Paget (1909), 42 S.C.R. 488.  Sopinka J. said in Willick v. Willick, [1994] 3 S.C.R. 670 at p. 689, that the objective of the court should be "to interpret statutory provisions to harmonize the components of legislation inasmuch as possible, in order to minimize internal inconsistency".

[12]            It appears to me that s. 16(b)(iv) of the Regulation 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.  It provides an exception to the general requirement set out in s. 15 requiring parties to attend such sessions.  Presumably, it was thought more efficacious for parties to be usually required to be in personal attendance at such sessions to realize the full benefits of a mediation process.

[13]            Section 23(a) is cast in quite broad terms.  The court is endowed with the ability to order what is normally mandated without the necessity of any court order by the provisions of ss. 15 and 16.  I note that there is provision made by s. 23(c) for a court to excuse a party from attending pre-mediation or mediation proceedings if such attendance would be "materially impractical or unfair".  That has some similarity to the provisions in s. 16(b)(iv) relieving a party out of the jurisdiction from attending a mediation session.

[14]            It appears to me a plausible and proper interpretation of the Regulation is as follows.  Sections 15 and 16(b)(iv) should be found to be normally applicable when the process of mediation is triggered by the actions of a party who delivers a Notice to Mediate under the provisions of s. 3 of the Regulation.  On the other hand, s. 23 may be viewed as applicable to a mediation proceeding in a situation in which the court has been requested to intervene and give directions.  This section is silent as to the locus of any mediation ordered by the court.  The discretionary power afforded the court by s. 23(a) seems very broadly couched.

[15]            Modern commerce is international in scope and it does occur from time to time that parties located in different jurisdictions will be litigating in the respective forum of one or the other of a number of parties.  Mediation processes have become more common and utilized, presumably to attempt to resolve litigious proceedings short of a full trial process.  It is perceived that access to justice can thus be enhanced and the costs of litigation ameliorated by this and similar methodologies.

[16]            The judge in the instant case was persuaded that there was value in ordering a mediation to take place.  She fixed the locus as Singapore where a very substantial number of individual parties reside.  As the respondent notes, the Supreme Court has in personam jurisdiction over the appellants who have attorned to the jurisdiction of the court.  I consider s. 16(b)(iv) and s. 23(a) can be reasonably interpreted as applying to two different situations, s. 16(b)(iv) the more usual one where the court is not required to make any order and s. 23 where a party has applied to the court to give directions concerning mediation.  The respective sections can, in my opinion, stand together and be interpreted as simply applicable to differing factual circumstances.

[17]            It is important to note that mediation undertaken pursuant to the Regulation is in the context of ongoing litigation.  The mediation is an adjunct of a proceeding for which the court is responsible.  I consider that s. 23 was enacted to ensure that a court in an appropriate case would be endowed with a broad power to make orders to ensure the efficacy of the mediation process.  In the majority of cases, I would expect that the mediation process would proceed, as most do, without the necessity for any intervention by the court.  However, in cases where the intervention of the court is thought requisite, s. 23 endows the court with a broad jurisdiction to make the orders necessary to ensure the mediation process is both effective and fair.  I consider s. 23 might be described as in the nature of a broad discretionary provision, designed to be utilized only when necessary to assist in the mediation process.  As I noted earlier, I should think the large majority of mediation proceedings would carry forward without the necessity of court intervention.  I do not consider that in making the order she did, the chambers judge exceeded her jurisdiction.  I would sustain the order and dismiss this appeal.

[18]            PROWSE, J.A.: I agree.

[19]            CHIASSON, J.A.: I agree.

[20]            HALL, J.A.: The appeal is dismissed.

“The Honourable Mr. Justice Hall”