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Why mediate? Plaintiffs dippin' back to their bag of tricks

 Aug 6, 2018 9:00 AM
by Kevin Mitchell

The February 23 and May 28, 2018 decisions of the Superior Court in Thomson v. Portelance and Canfield v. Brockville Ontario Speedway, respectively, 2018 ONSC 1278 and 2018 ONSC 3288, have Justices Firestone and Mew considering the benefit of mediation.

In the former, the tort defendant in a motor vehicle claim refused to schedule a mediation in advance of discoveries in contravention of s. 258.6(1) of the Insurance Act, which permits either party to make the request. The section is silent as to timing but very loud on how to treat non-compliance. Among other things, which mandate the mediation occur quickly and without reference to other steps in the litigation, s. 3 of Regulation 461/96 requires the defendant’s insurer pay the full freight for its cost. Whether prudent or not, due to the related restrictions, the plaintiff wanted to set the matter down quickly after fulfilling the requirement to have a Toronto action mediated. Ottawa and Essex County are also subject to the Mandatory Mediation Program. In this motion scenario, the defendants are lucky they escaped related legal costs.

In the latter, also a personal injury tort claim, there was divided success after a trial. In the broader context, the assessment of costs was at issue and the applicability of Rule 57.01 of the Rules of Civil Procedure as an aid to the court’s overarching discretion. Various of the factors were discussed and their applicability considered. Apart from neutral factors, his Honour found lead plaintiff counsel’s hourly rate too high and the number of hours spent on the case “significant” in relation to its nature. When he got to the criterion of ‘Other matters relevant to the proceeding’, he noted it was a Belleville action to which the mediation Program does not apply, further to Rule 24.1. His Honour found there was no requirement to mediate. Notwithstanding, he went on to consider extra-jurisdictional practice that looks to the justification of the refusal to mediate. Neither party had a strong position upon liability. He found the case to have merit, the defendant’s insurer uncompromising and unreasonable for it to have declined mediation. In the end, the costs reduction was $80,000.00 plus tax, which would have reduced the plaintiff’s costs claim to about the same amount as the judgment. However, the mediation refusal caused the reduction to roll back to about $60,000.00 instead, making the fee recovery $20,000.00 higher. I estimate the difference to equal between two and three times the amount it would have cost the Speedway to prepare for and attend a mediation. It appears that a lack of ‘membership’ in the mediation Program does not absolve a litigant from cost consequences, whether further to the Insurance Act or other statutory/regulatory provisions.

So take a page out of the hip-hop duo, Salt-N-Pepa’s, songbook. Be sure to mind (i.e. know) your business when you take a ride in your coupe.

Kevin is a Partner of Samis+Company. Throughout his career, he has practiced almost exclusively in the area of accident benefit and bodily injury matters arising from motor vehicle accidents. He has also defended various non-motor vehicle bodily injury claims. Kevin carries on a robust practice involving privately arbitrated disputes between insurers in both priority and loss transfer matters. 

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