Mandatory Mediation in an Ontario Civil Lawsuit, and the Pre-Trial Conference

What is mandatory mediation in an Ontario civil lawsuit?

Mediation is a process where a neutral third party helps the people in a dispute talk and try to reach an agreement they can both accept (rule 24.1.02). The Rule describes the mediator's role as facilitating communication among the parties. Rule 24.1 aims to reduce cost and delay and encourage early, fair resolution (rule 24.1.01).

Does mandatory mediation apply to my lawsuit?

Not every Ontario lawsuit is covered. By rule 24.1.04(1), the Rule applies to:

• actions that were already governed by it before January 1, 2010;
• actions started on or after that date in the City of Ottawa, the City of Toronto or the County of Essex; and
• from January 1, 2014, actions transferred into one of those counties, unless the court orders otherwise.

Even then, there are listed exceptions in rule 24.1.04(2). They include actions covered by the separate estates, trusts and substitute decisions mediation rule (Rule 75.1), actions on the Commercial List in the Toronto Region, mortgage actions, actions under the Construction Act (trust claims excepted), and actions under the federal Bankruptcy and Insolvency Act. A further exception covers certain matters that went through mediation in the previous year under s. 258.6 of the Insurance Act. Class proceedings are covered only if certification was denied (rule 24.1.04(2.1)).

A party can also ask the court to exempt an action from the Rule (rule 24.1.05).

Actions outside the categories above are not covered by Rule 24.1 by its own terms.

When does the mediation session have to take place?

Here "defence" has a defined meaning that includes a notice of intent to defend, a statement of defence, and a notice of motion in response to the action (other than one challenging jurisdiction) (rule 24.1.03). For an action transferred into one of the listed counties, the 180-day rule and the automatic assignment do not apply; instead the court may fix the date by which a session must take place (rule 24.1.09(2.1)). The court can extend or shorten the 180 days, weighing factors such as the number of parties, complexity, a planned summary judgment motion, and whether discovery would help the mediation succeed (rule 24.1.09(2)). The parties can postpone it by written consent filed with the co-ordinator (rule 24.1.09(3)).

Deadlines depend on the facts and any court orders, and should be confirmed with a lawyer immediately.

Who has to attend the mediation?

The parties, and their lawyers if they have them, are required to attend unless the court orders otherwise (rule 24.1.11(1)). Where an insurer may have to pay all or part of a judgment, a representative of the insurer attends and the insured party is not required to, absent a contrary court order (rule 24.1.11(1.1)). A party who needs someone else's approval to settle must arrange, beforehand, to have phone access to that person throughout the session (rule 24.1.11(2)).

Each party prepares a statement of issues (Form 24.1C) identifying the factual and legal issues, briefly setting out its position and interests, and attaching documents it considers central (rule 24.1.10(2) and (3)). It goes to every other party and the mediator.

What if someone does not attend or does not prepare?

If a session cannot practically proceed because a party did not prepare and provide the statement of issues, or did not attend within the first 30 minutes, the mediator cancels it and files a certificate of non-compliance (rules 24.1.10(5) and 24.1.12). The matter then goes to a judge or associate judge, who may convene a case conference and make orders, which can include a timetable, striking out documents, dismissing a plaintiff's action or striking a defendant's defence, and costs (rule 24.1.13).

Is mediation confidential?

Under rule 24.1.14, what is communicated at a mediation session, plus the mediator's notes and records, is deemed to be without prejudice settlement discussion.

How does a mediation end?

The mediator reports to the co-ordinator and the parties within 10 days of finishing (rule 24.1.15(1)). If the parties reach an agreement on some or all issues, it is signed by the parties or their lawyers (rule 24.1.15(3)). If it settles the action, the defendant files a notice within 10 days, counted from signing or, for a conditional deal, from when the condition is met (rule 24.1.15(4)).

If a party does not follow a signed agreement, another can ask a judge for judgment in its terms or carry on with the lawsuit as though no deal had been made (rule 24.1.15(5)). With consent, the court may order an additional session (rule 24.1.16).

What is a pre-trial conference?

A pre-trial conference is a meeting with a judge or associate judge, usually held once an action has been set down for trial. Its purposes are to give a chance to settle some or all of the issues without a hearing and to get directions that help the case proceed fairly and efficiently (rule 50.01).

In an action, the parties are to schedule a conference date with the registrar inside 180 days of the action being set down, unless the court orders otherwise. If they do not, the registrar schedules it and gives notice (rule 50.02(1) and (2)). Unless a court order or practice direction provides otherwise, the date is to be no more than 120 and no less than 30 days before the first trial day or the first day of the sitting (rule 50.02(2.1)). A judge may also direct a pre-trial conference at other times (rule 50.02(3)), including in an application (rule 50.03).

What happens at a pre-trial conference?

A typical pre-trial process, as the Rules describe it, looks like this:

1. Certificate of readiness. At least 30 days before, each party delivers a certificate (Form 50A) stating whether it plans to call outside opinion witnesses at trial and, if so, whether each written report was served on time and, if not, why (rule 50.03.1).
2. Pre-trial brief. At least five days before, each party files a concise brief, without argument, covering the nature of the proceeding, the issues and its position, likely witnesses and time estimates, and steps still needed (rule 50.04).
3. The conference. Lawyers appear and, unless the judge orders otherwise, the parties also participate (rule 50.05(1)). Topics include settlement, admissions, liability, damages and trial length (rule 50.06).
4. If there is no settlement. The judge may set a timetable, adjourn the trial date if necessary (under the regional senior judge's direction), order a case conference if setting a timetable is impractical, or make other orders about how the case proceeds (rule 50.07(1)).
5. Report. The judge completes a report on remaining steps and the expected length of trial, which the parties or their lawyers certify they understand (rule 50.08).

What are the limits on what is said at a pre-trial conference?

Statements made at a pre-trial conference are not to be communicated to the trial judge, except as shown in an order or the pre-trial report (rule 50.09). The conference judge does not preside at the trial unless all parties consent in writing (rule 50.10(1)). If the presiding judge finds a conference was unproductive for reasons relating to a party's conduct, a costs order may require payment immediately (rule 50.12).

When it is worth talking to a lawyer

People in this position typically speak to a lawyer when:

• a notice of mediation (Form 24.1B) or a pre-trial conference notice arrives;
• the 180-day period is near its end and no mediator has been chosen;
• an insurer is involved and it is unclear who attends;
• a certificate of non-compliance or costs order has been mentioned;
• a settlement offer has been made, or an amount is in dispute;
• a mediated agreement is being drafted or has not been honoured.

What to gather

A lawyer would typically ask for:

• the statement of claim, statement of defence and any later pleadings;
• notices from the mediation co-ordinator, the mediator or the court office;
• any settlement offers and the correspondence about them;
• insurance policies and letters from insurers;
• evidence of losses, such as invoices or medical records;
• the affidavit of documents and any discovery transcripts.

Related guides

Earlier steps: examination for discovery in Ontario and being served with a statement of claim. Related: offers to settle and costs.