Parties in a Motor Vehicle Personal Injury Claim Have a Rare Right to Compel Mediation. Don’t Take it for Granted.

Mediation is sometimes a right, but it is always a privilege

Mediation is a procedural right for civil litigants in mandatory mediation jurisdictions of Windsor, Toronto, and Ottawa: the major exception being family law litigants. 

Mandatory mediation started out as a pilot project in these jurisdictions and became a permanent fixture once the clinical trial revealed mediation was a success: a high percentage of cases were resolved through mediation, it kept a lot of cases out of the courtrooms, and it kept legal costs down so that more people had access to justice.  It is a shame then that mandatory mediation was not engrafted into other jurisdictions thereafter. 

Absent any other procedural or statutory provision, a civil litigant has access to mediation in only one of two ways: a) as part of a mandatory mediation program (currently in either of Windsor, Toronto and Ottawa); or b) on the consent of all the parties to the lawsuit.  But for civil litigants disputing damages arising out of the use and operation of a motor vehicle insured in Ontario, there is a third option: exclusive to them.

Compelling a party to Mediation without their Consent– A Rare Right Exclusively Given to Parties in Motor Vehicle Related Civil Claims

Civil litigants in motor vehicle accident claims have a very unique statutory right to mediate.  It is noteworthy that there is only one statutory provision in Ontario that empowers one civil litigant to compel an opponent to attend mediation (even perhaps against their will): this is section 258.6(1) of the Ontario Insurance Act, in relation to injuries sustained in motor vehicle accidents involving defendants insured in Ontario.  Section 258.6(1) of the Insurance Act effectively bypasses the need to obtain the consent of all the parties to the lawsuit, and is available regardless of where the action was commenced (in or out of a jurisdiction with a mandatory mediation).

Other jurisdictions like British Columbia, for example, have legislatively promoted the right to compel mediation (absent consent) more aggressively, by including “Notice to Mediate” provisions in many different regulations, such: the Education Mediation Regulation, BC Reg 250/2000 , (School Act); the Notice to Mediate Regulation, BC Reg 127/98, (Insurance (Vehicle) Act); the Notice to Mediate (General) Regulation, BC Reg 4/2001, (Law and Equity Act); the Notice to Mediate (Residential Construction) Regulation, BC Reg 152/99, (Homeowner Protection Act); and the Notice to Mediate (Family) Regulation, BC Reg 296/2007, (Law and Equity Act).

Given the rarity of such relief in Ontario, it should not be taken for granted, and should be fully utilized.  Indeed, something as simple as a one-line letter or email, to the opposing party/counsel stating that “my client is requesting a private mediation pursuant to section 258.6(1) of the Insurance Act, in the above captioned matter,” is more than sufficient.  Once a party requests a mediation in this way, the opposing party cannot delay the scheduling of the mediation (see Thomson v. Portelance, 2018 ONSC 1278).

The cost of a private mediation is typically shared equally amongst the participating parties; however, once a request is made for mediation under section 258.6(1) of the Insurance Act, the defendant will bear the entire cost of the mediation exclusively, even if the lawsuit was started in a mandatory mediation jurisdiction like Windsor, Toronto, and Ottawa (see for example: Cioffi v. Modelevich et. al., 2018 ONSC 7084).  This “expense” is presumably factored into the cost of the premiums charged and spread over the insurer’s entire auto-policy portfolio.

The Motivation to Mediate is Compelling

From the defence perspective, mediation represents a good chance to resolve the case before the plaintiff’s disbursements become an impediment to settlement. Indeed, if the plaintiff has a strong case, it behooves the defence to compel the plaintiff to mediation before the plaintiff expends copious amounts of funds on disbursements – most of which will be borne by the defence, especially if the plaintiff has a strong case. Conversely, for a plaintiff with a weak case, it is probably best to get their case mediated before the case inches its way to the courtroom steps and the plaintiff has little choice but to expend significant sums in disbursements for medical reports, economic loss reports, accident reconstruction reports, etc, and the defence has to do likewise, in kind, with rebuttal reports, private investigators, etc. For both parties, the cost of mediation is a fraction of the cost of even one expert report, and when compared to the cost of trial, the cost differential is staggering.

It will be interesting to see if Ontario will ever embrace the more expansive “Notice to Mediate” model in British Columbia, or if the mandatory mediation procedural model will be extended to more court jurisdictions. For now, however, the power to compel mediation exists in automobile related damage cases in Ontario, and it is wise for parties involved in these types of cases to seize the opportunity to use it: it is a rare commodity in Ontario.

Authored by: David M. José (B.A, LL.B)