Executive Summary: Key Legal and Evidentiary Issues

• Enforceability of mediation Minutes of Settlement as a binding contract despite the self-represented plaintiff’s limited literacy and reliance on a lay advisor
• Allegations of duress, undue influence, mediator bias and procedural unfairness in the mandatory mediation process, and whether they vitiated consent to settlement
• Admissibility and propriety of surreptitious audio recordings of a confidential mandatory mediation, and the striking of transcript-based exhibits from affidavits
• Objections to affidavit evidence on the basis of argument, opinion and improper use of exhibits, contrasted with permissible factual and hearsay averments
• Assessment of whether the settlement terms, including apology and retraction, were unconscionable in a defamation context
• Determination and fixing of costs in light of misconduct (secret recording) and the defendant’s successful application to enforce the settlement

Facts of the case

The dispute began when the plaintiff, Duane Westgard, commenced proceedings in the King’s Bench for Saskatchewan against the defendant, Jessica Lynn Raycraft, alleging defamation, emotional distress, aggravated damages and costs. He initially filed an originating application on April 22, 2025, supported by his affidavit, rather than starting with a statement of claim as required for such an action. The documents were drafted with the assistance of his associate, Pamela Michaels, whom he trusted as his advisor due to his functional illiteracy and difficulty reading and interpreting legal materials. She also wrote to the Court requesting permission to act as his personal assistant during proceedings, explaining his literacy limitations and the need for support to ensure his meaningful participation. The Court noted that, in substance, her role went beyond mere assistance and into the realm of advising on legal strategy and document preparation. The procedural misstep of starting by originating application was later corrected. On May 5, 2025, the originating application was withdrawn and replaced with a statement of claim, which was issued under the same file number. This claim again sought damages for alleged defamation and associated harms. The drafting reflected a reasonable grasp of the legal process, presumably due to Ms. Michaels’ involvement. The defendant was served and retained counsel, who filed a statement of defence in June 2025, formally contesting liability and putting the claim into issue.

Mediation, parallel litigation and the minutes of settlement

Under The King’s Bench Act, mandatory mediation applied to this civil dispute. A mediation session was scheduled for September 10, 2025, under s. 7-1(2). At the same time, Ms. Michaels herself had launched a separate but closely related action against Ms. Raycraft (KBG-BF-00064-2025), raising similar complaints and seeking similar relief. By agreement of all concerned, the disputes were mediated together in a single joint session. Present at the mediation were the mediator, Mr. Robin Fremont, the plaintiff and his advisor Ms. Michaels, and the defendant with her counsel. During the session, the parties engaged in settlement negotiations that addressed both lawsuits. According to the defendant’s affidavit, various paragraphs of the draft settlement were discussed in detail and clarified: the wording and purpose of an apology related to a particular Facebook post; the mechanics and proof of taking down the allegedly defamatory post; the conditions under which a reserved apology might be published by Ms. Michaels in her publication; the need for both plaintiffs to withdraw their actions as a precondition for the defendant’s obligations to take effect; and the scope of the confidentiality clause applying equally to all participants. The session resulted in a written document entitled Minutes of Settlement, signed by all parties, which purported to resolve both the Westgard and Michaels actions. In particular, the Minutes recorded that they were entered into voluntarily and with full understanding of their nature and effect, provided for the withdrawal of both court actions, set out terms for apology and retraction of the March 22, 2025 Facebook post, and included a term that Ms. Raycraft would pay $2,000.00 to Ms. Michaels as part of a global settlement of the two claims. The settlement also contained a confidentiality clause barring the parties from making the contents public and required proof of withdrawal filings from both plaintiffs before certain obligations were triggered.

Surreptitious recording of the mediation

A central evidentiary controversy arose from the conduct of Mr. Westgard and Ms. Michaels during the mediation. They had secretly recorded the entirety of the session, including private caucus time when the defendant met only with the mediator and her counsel, by placing the plaintiff’s mobile phone in Ms. Michaels’ purse and leaving it in the room to capture the discussions. This fact emerged in Ms. Michaels’ affidavit sworn November 13, 2025, and in her oral submissions at the later hearing. The Court expressed clear disapproval of this practice. The mediation was a mandatory, Court-prescribed confidential process under The King’s Bench Act, and the judge held that such surreptitious recordings offend the legislated confidentiality of mediation and undermine the integrity and public policy objectives of the process. While Ms. Michaels argued that the recording and transcript constituted “real evidence”, the Court rejected that argument for admissibility purposes. It held that references to the recording or transcript in affidavits from either the plaintiff or Ms. Michaels would be struck and not considered, even if certain textual portions might otherwise survive traditional evidentiary objections. The Court did, however, allow parties to depose their own recollections of what occurred during the mediation, distinguishing personal memory from the use of a prohibited recording as evidence. This approach balanced the need to protect the confidentiality regime with the requirement to examine allegations of duress, bias or unfairness surrounding the creation of the Minutes of Settlement.

Objections to affidavit evidence

Before turning to the merits of whether the Minutes of Settlement should be set aside or enforced, the Court dealt with two notices of objection filed by the defendant. The first notice challenged specific parts of an affidavit sworn by Mr. Westgard on September 30, 2025. Although counsel failed to provide a marked-up copy highlighting the impugned passages, the Court proceeded by having counsel read the relevant parts aloud to avoid adjournment and delay. Paragraphs 12 and 13, along with their exhibits, were ultimately struck. One exhibit was a “contradiction chart” juxtaposing statements from the defendant’s affidavit with passages from the transcript; the Court found it to be argument and opinion rather than proper evidence, contrary to Rule 13-30 of The King’s Bench Rules. The other exhibit, consisting of transcript excerpts from the secret mediation recording, was likewise treated as argument or opinion and inadmissible in affidavit form and, more fundamentally, excluded for policy reasons due to the confidentiality breach. The second notice of objection targeted portions of Ms. Michaels’ November 13, 2025 affidavit. The Court engaged in a paragraph-by-paragraph analysis, admitting statements that consisted of facts within the deponent’s knowledge or permissible hearsay and excluding those that constituted pure argument. In particular, one paragraph framed as argumentative commentary was struck, whereas paragraphs documenting her personal observations at the mediation were left intact. This filtering of affidavit material ensured that the record for the applications would be based on admissible evidence rather than advocacy disguised as evidence, while also enforcing the confidentiality safeguards around the mediation.

Application to set aside the settlement and counter-application to enforce it

Soon after the mediation, events took a contentious turn. On September 12, 2025, just two days after signing the Minutes of Settlement, Mr. Westgard filed a notice of application seeking to set them aside, reinstate his action as if the settlement had never occurred, and obtain costs if his application was opposed. He alleged that his limited literacy had not been properly accommodated, that he was pressured into signing without sufficient time to think, and that he had been physically impeded from leaving the room after a hostile outburst by the defendant. He further claimed that the mediator was not neutral due to perceived familiarity with defence counsel, that the terms were one-sided and unconscionable, and that his consent was vitiated by duress, undue influence and procedural unfairness. These assertions were supported by affidavits from himself and Ms. Michaels. In response, on October 1, 2025, the defendant filed her own application seeking to have the Minutes of Settlement enforced and declared binding under the Court’s broad remedial and declaratory powers in The King’s Bench Act and Rule 1-5 of The King’s Bench Rules. She argued that the written Minutes reflected a valid contract formed at mediation, that all parties had the opportunity to review the document, that no request for additional time to consider it had been made, and that the mediator had remained impartial and without decision-making authority. She also sought “set-off” treatment so that any costs award in her favour could be offset against the $2,000.00 she had agreed in the Minutes to pay to Ms. Michaels, and she asked for solicitor-and-client costs because she had been forced to bring the enforcement application after the settlement was reached. Both applications, along with the evidentiary objections, were heard together in late November 2025.

Court’s analysis of the minutes of settlement as a contract

On the central question of enforceability, the Court approached the Minutes of Settlement as a species of contract, consistent with prior authority on settlements arising from mediation or pre-trial processes. It reiterated that such minutes require basic contractual elements: consensus ad idem (meeting of the minds), sufficient clarity, consideration, and the absence of vitiating factors such as incapacity, duress, undue influence, unconscionability or mistake. The burden lay on the party seeking to escape the contract—in this case, the plaintiff—to prove, on a balance of probabilities, that a valid bar to enforcement existed. The Court drew on recent Saskatchewan decisions dealing with settlement enforcement and noted the strong public policy favouring holding parties to bargains reached in good faith in court-connected resolution processes. It framed its inquiry by asking whether there were circumstances in the conduct of the mediation, or on the face of the Minutes, that would render them unenforceable, and whether the plaintiff had raised any valid legal ground preventing enforcement. After reviewing the competing affidavits, the judge preferred the account provided by the defendant. Her evidence described a mediation process in which counsel carefully explained various paragraphs of the draft Minutes, where both plaintiffs asked questions and obtained clarifications on multiple points—including the “both-or-nothing” withdrawal requirement, the operation of the apology and publication terms, the timing for removal of the Facebook post, and the nature of the confidentiality provisions. Importantly, the Court placed weight on the prominent role of Ms. Michaels. She was present at all times, she had been accepted by the plaintiff as his trusted advisor, she had drafted his earlier materials with sophistication, and she actively assisted him by reading and explaining the Minutes during the mediation. In light of this, the Court found it difficult to accept later claims that the plaintiff did not understand the document or had been misled, particularly when he had affirmatively declared in the Minutes that he entered into them voluntarily and with full understanding of their nature and effect.

Findings on duress, unconscionability and bias

The Court rejected each of the plaintiff’s substantive grounds for setting aside the settlement. On alleged physical duress and the claim that he was prevented from leaving the room, the Court preferred the defendant’s version, which stated that everyone remained seated and that when the plaintiff moved to leave, it was Ms. Michaels who asked him to return and he did so voluntarily. The judge found no evidence that the mediator or defence counsel blocked his exit or coerced his presence. On claims of undue pressure tied to literacy limitations and the need for more time, the Court held that the presence and active participation of Ms. Michaels—who had taken on the responsibility of advising and reading documents aloud—undercut the suggestion that he lacked meaningful opportunity to understand the terms. The Court was also unpersuaded that the settlement was unconscionable. It observed that the consideration provided by the defendant—apology and retraction of the impugned Facebook post—was broadly consistent with remedies often seen in defamation claims, and there was nothing so one-sided as to shock the conscience or justify setting aside the contract. On the issue of mediator bias, the Court found no proof of partiality; casual familiarity between a mediator and counsel, without more, did not meet the threshold for a reasonable apprehension of bias, particularly where the mediator had no adjudicative power and was simply facilitating negotiation. Overall, on the totality of the admissible evidence, the Court concluded that the plaintiff had not established that his will had been overborne or that any recognized vitiating factor rendered the Minutes of Settlement invalid.

Outcome and monetary consequences

In the result, the Court dismissed the plaintiff’s application to set aside the Minutes of Settlement and granted the defendant’s application to enforce them. It declared that the Minutes of Settlement dated September 10, 2025 constitute a binding and enforceable contract between the parties and ordered that they may be entered as a judgment in the action. The parties were directed to complete the terms of the settlement within 10 days of service of the issued order, including the filing and service by the plaintiff of a notice of discontinuance to formally end his lawsuit. On costs, the Court noted the seriousness of the surreptitious recording but declined to award solicitor-and-client costs. Instead, it fixed a global costs award of $1,500.00 payable by Mr. Westgard to Ms. Raycraft, finding that this was an adequate response to both the outcome of the applications and the Court’s disapproval of the recording. The settlement itself includes an obligation for the defendant to pay $2,000.00 to Ms. Michaels as part of the global compromise of both lawsuits, but that payment flows from the private contract that has been enforced rather than from a fresh judicial assessment of damages in this decision. Accordingly, the successful party in this judgment is the defendant, Jessica Lynn Raycraft, in whose favour the Court expressly ordered $1,500.00 in costs; any broader monetary effects of the global settlement—such as the $2,000.00 payment to Ms. Michaels and any offsetting or net financial position—cannot be fully quantified on the face of this decision alone.