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March 2018

Face the Music: Once Requested, A Mediation Must be Scheduled Forthwith

David Elmaleh
David Elmaleh

Alexander Steffen
Alexander Steffen,
Law Student

By David Elmaleh and Alexander Steffen

There is no longer any reason for litigants to delay mediation for tactical purposes.

Recently, the Ontario Superior Court of Justice in Thomson v Portelance, 2018 ONSC 1278, reminded the Bar that a party to motor vehicle accident litigation in Ontario must schedule a mediation once requested.

In Thomson, Justice Firestone presided over a case conference requested by the plaintiff in a situation where the defendant refused to schedule mediation until after examinations for discovery were complete. The purpose of the case conference was to request that a timetable be imposed. Justice Firestone commended plaintiff's counsel for properly requesting the case conference pursuant to Rule 50.13.

He held that the defendant's position to refuse to even schedule mediation was inconsistent with s. 258.6(1) of the Insurance Act, and s. 3 of O. Reg 461/96.

S. 258.6(1) of the Insurance Act, provides that a person, on a request of either party, must participate in mediation according to the regulations. The section is reproduced below (emphasis mine):

A person making a claim for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile and an insurer that is defending an action in respect to the claim on behalf of an insured or that receives a notice under clause 258.3(1)(b) in respect of the claim shall, on the request of either of them, participate in the mediation of the claim in accordance with the procedures prescribed by the regulations.

Once this section is triggered, section 3 of O. Reg 461/96 stipulates that within 10 days, the parties must agree and appoint a mediator, failing which within a further 10 days each side must appoint a person to participate in the mediator's appointment, and those two persons shall together appoint a mediator.

Justice Firestone held that, when the above sections are read together, the sections provide a positive obligation for both parties to schedule the mediation. This is notwithstanding the status of any other event in the litigation process – including the completion of discoveries, etc. In other words, there is no condition precedent for the scheduling of mediation – it is mandatory. A timetable was therefore imposed.

...a novel and inexpensive way to react to an unresponsive party's undue delay in the litigation process.

This case demonstrates a novel and inexpensive way to react to an unresponsive party's undue delay in the litigation process.

There are many chords to play when prosecuting or defending a motor vehicle accident claim, some more creative and aggressive than others. It is unfortunate when a judge has to step in and act as maestro to direct the parties to follow the rules. However, as this case demonstrates, judges will not hesitate to direct a party to face the music and schedule a mediation, where appropriate.

To paraphrase Justice Firestone's ruling in this case, “The Show Must Go On”.

Read the Full Endorsement.