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02/Mar/2018
Scheduling Mediation in a Climate of Delay

A challenge currently facing the Plaintiff personal injury bar are the delays in obtaining a trial date. Personal injury plaintiffs who are injured, unable to work and require ongoing, expensive medical care now face significant wait times prior to the resolution of their case. At Bogoroch & Associates LLP, we understand that the financial burden borne by injured plaintiffs is further exacerbated by the delays.

The Supreme Court’s decision in R. v. Jordan, 2016 SCC 27, gave priority to criminal cases being tried within a reasonable timeline, resulting in criminal cases receiving the majority of judicial resources and civil cases being further delayed.  The delay between when a matter is set down for trial and the actual date of trial can be over two years.

Pursuant to paragraph 57 of the Toronto Consolidated Practice Direction, effective May 1, 2017, a Toronto action cannot be set down for trial until mediation occurs. Thus, plaintiffs counsel must proceed to mediation as swiftly as possible to ensure that the action progresses in a timely manner.

Unfortunately, scheduling and proceeding to mediation is no easy task when faced with an insurer who financially benefits from a delay in scheduling both mediation and pre-trial. In recent years, it has become more common for Plaintiff’s counsel to be faced with an insurer who refuses to schedule mediation until a certain step in the litigation process occurs, such as Examination for Discovery.

Rachel Radomski of Bogoroch & Associates LLP recently brought a motion to the court to compel the insurer to mediate the case in a timely manner. Justice Firestone agreed and his endorsement in Thomson v. Portelance, 2018 ONSC 1278, enforces the obligation of both parties to select a date and a mediator within 10 days of a party’s request to mediate. In doing so, Justice Firestone highlights s.258.6(1) of the Insurance Act, R.S.O. 1990, c.I.8 and s.3 of the Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96.

The Legislation indicates the following:

  • 258.6(1): A person making a claim, or that receives notice under clause s.258.3(1)(b) in respect of a claim, shall, on the request of either party, participate in mediation of the claim in accordance with the procedures prescribed by the regulations
  • 3(1) of O. Reg. 461/96: if a request for mediation is made under s.258.6(1) of the [Insurance] Act, the plaintiff and the Defendant’s insurer shall, within 10 days after the request is made, agree on and appoint a person to be the mediator

Justice Firestone articulates the following:

[11] These sections, when read together, confirm that once a party requests that a mediation be scheduled, the other party cannot delay the scheduling of the mediation until the completion of a specific event in the litigation process. This includes the completion of discoveries. The appointment of a mediator and scheduling of mediation is in no way contingent on the completion of discovery.

[12] Once the plaintiff requested the scheduling of the mediation the defendants have a positive obligation to appoint, schedule and conduct such mediation with the timeframe and procedures set forth in s.258(1) of the Act and s.3 of O. Reg. 461/96.

Bogoroch & Associates LLP advocates for injured plaintiffs to move their cases forward and reach settlement expeditiously. This endorsement should serve as a tool in the arsenal of the personal injury bar to combat against the systemic culture of delay.

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