*Co-authored with Rachel Radomski
Insurers cannot delay scheduling mediations until the completion of a specific event in the litigation process, such as examinations for discovery.
Date Heard: February 23, 2016 | Full Decision [PDF]
In Thomson v. Portelance, the insurer refused to schedule mediation until completion of examinations for discovery. The plaintiff, represented by Bogoroch & Associates LLP, therefore requested a chambers appointment pursuant to Rule 50.13 of the Rules of Civil Procedure.
Justice Firestone held that both parties were obligated to select a date and a mediator within 10 days of a party’s request to mediate. In doing so, Justice Firestone highlighted 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:
S.258.6(1) of the Insurance Act: 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
S.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 held that the defendants’ position was inconsistent with the legislation:
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.
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. (Paras 11-12)
Justice Firestone noted that in delaying the mediation, the insurer was effectively delaying the entire action due to the requirement for a Toronto action to be mediated before being set down for trial. The endorsement in Thomson v. Portelance supports the insurer’s obligation to mediation actions in a timely manner.
Read the full decision [PDF]
