A new motion decision of Justice Firestone could have wide ranging ramifications in terms of the timing of when mediations are typically scheduled.
In Thomson v. Portelance et al., in an effort to be in a position to set their action down for trial early, the Plaintiffs sought to schedule a mediation, pursuant to s. 258.6(1) of the Insurance Act, prior to completion of discoveries. The Defendants resisted this request.
Section 258.6(1) of the Act is a “lesser known” provision providing for mandatory mediation in automobile cases, which states as follows: 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.
Justice Firestone held that, once a party requests that a mediation be scheduled under s. 258.6(1), the other party cannot delay the scheduling of the mediation until the completion of a specific event in the litigation process, such as discoveries. Once the Plaintiffs requested the scheduling of the mediation, the Defendants had a positive obligation to appoint, schedule, and conduct such mediation within the timeframes and procedures set forth in s. 258.6(1) of the Act and s. 3 of O. Reg. 461/96.
How successful a “pre-discovery” mediation might be, in the likely absence of a lot of information that normally becomes available through the discovery process is, of course, an entirely different issue not addressed by this decision.