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The timing of mandatory mediations in Toronto has changed

Miranda Serravalle
Miranda Serravalle,
Associate

May 2017

By Miranda Serravalle

Introduction

As of May 1, 2017, the practice direction regarding the timing of mandatory mediations in Toronto has changed.

Mandatory mediations must now be completed prior to an action being set down for trial unless a judge or case management master orders otherwise.  This is a significant change from the past practice direction that only required mandatory mediations to be scheduled before the action could be set down for trial. This change applies to all Toronto files that have not yet been set down for trial.

We anticipate that this change to the practice direction will lead to earlier mediations on Toronto matters. We are already starting to see the impact of this change, in terms of plaintiffs' counsel reaching out earlier than ever to schedule mediations, some even seeking to schedule same at the same time as scheduling discoveries.

Although this change will be helpful to keep files moving ahead at a steady pace, it will require keen attention to ensure all necessary information and documentation is obtained in a timely fashion to allow for a productive mediation.

Failing to file the trial record and meet the new practice direction requirements within five years of issuing the statement of claim will...

On subrogation files, this practice direction change combined with the changes to the Rules of Civil Procedure, causing actions to be automatically dismissed (without warning) if not set down for trial within 5 years, will make it very important to arrange for timely mediations. Failing to file the trial record and meet the new practice direction requirements within five years of issuing the statement of claim will result in the action being dismissed without warning.

Below is the practice direction wording which sets out the specifics of what needs to be filed with the court to allow a trial record or notice of readiness for pre-trial conference to be filed.


Toronto Practice Direction Excerpt

(a) Mediation

  1. All actions commenced in or transferred to the Toronto Region are subject to mandatory mediation under rule 24.1 except those actions excluded in rules 24.1.04(2) and (2.1).

  2. A mediation session must take place within 180 days after the first defence has been filed, unless a consent under rule 24.1.09(3) has been filed or the court orders otherwise.

  3. Court staff will not accept for filing a trial record (ordinary action) or a notice of readiness for pre-trial conference (Simplified Procedure action) unless the party setting the action down for trial files a Certificate that:

    a. Form 24.1A (Notice of Name of Mediator and Date of Session) has been filed with the mediation coordinator and the mediation session has taken place;

    b. the report by mediator (indicating that the mediation has been concluded) has been filed with the mediation coordinator;

    c. an order has been obtained from a judge or case management master exempting the action from mediation; or,

    d. an order has been obtained from a judge or case management master extending the deadline for mediation until after the action is set down for trial.

    These requirements will apply even where the parties have agreed to postpone a mediation session to a date more than 180 days after the first defence has been filed as permitted by rule 24.1.

  4. A motion for an order exempting the action from mediation should be made to any master (unless the action is being case managed by a judge or a specific master). The motion should be returnable in motions court or by case conference if the action is case managed. Motions in writing on consent will be considered if sufficient reasons are given.

  5. In keeping with the requirement for mandatory mediation and Rule 1.05, a judge may, at any stage in the proceeding, order that the parties not take any further steps in the proceeding, without leave of a judge, until a mandatory mediation has taken place.

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