Written By: Nick Todorovic and Daniel Garas, Summer Student
Can plaintiffs request a mediation to take place even before things, such as discoveries, have occurred? Section 258.6(1) of the Insurance Act, a provision that is not well known, actually provides for mandatory mediations. The provision states the following:
258.6 (1) 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 of 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 a mediation of the claim in accordance with the procedures prescribed by the regulations.
Failure to comply
(2) In an action in respect of the claim, a person’s failure to comply with this section shall be considered by the court in awarding costs.
DECISION BY JUSTICE FIRESTONE
In the 2018 decision of Thomson v Portelance, Plaintiff wished to schedule a mediation prior to examination for discoveries so that the “action [could] be set down for trial as soon as possible in order to advance the litigation expeditiously.” Not surprisingly, the Defendants, in this case, refused to schedule the mediation before the discoveries.
Justice Firestone held that “once a party requests that mediation be scheduled, the other party cannot delay the scheduling of the mediation until the completion of a specific event in the litigation process. The appointment of a mediator and scheduling of mediation is in no way contingent on the completion of discovery.”
When a plaintiff requests that mediation be scheduled under section 258.6(1), the defendant has a “positive obligation to appoint, schedule and conduct such mediation within the timeframes and procedures set forth” under 258.6(1) of the Insurance Act.
What this means is that if mediation is requested under the relevant provision of the Insurance Act, the parties must proceed to prepare for that mediation – through the appointment of a mutually agreed-upon mediator. A defendant cannot refuse mediation simply because different procedures within the litigation process which typically occur before mediation, have yet to take place.
Requesting mediation under section 258.6(1) will help plaintiffs get over the currently mandatory mediation hurdle much faster and allow claims to be resolved expeditiously, which in turn has the potential of relieving the backlogged court system.
 Thomson v Portelance, 2018 ONSC 1278.
 Ibid at para 1.
 Ibid at para 11.