SUPERIOR COURT OF JUSTICE, EAST REGION

OFFICE OF THE MASTER

MANDATORY MEDIATION IN OTTAWA

  1. Mediation of civil cases – Rule 24.1

Rule 24.1 remains in effect in Ottawa and all civil actions other than those exempted from the rule (Rule 24.1.04 (2)) must undergo mediation in an effort to facilitate an early and fair resolution of the dispute.

Certain automatic aspects of the rule have been suspended so that notwithstanding Rule 24.1.09 (6) & (6.1) the mediation co-ordinator is not currently making automatic appointments of roster mediators. The rule therefore functions as follows:

  • The parties are required to mediate the action within 180 days of the filing of a defence unless all parties provide written consent to extending the time (Rule 24.1.09 (3) (a)).
  • Though roster mediators will not be automatically assigned, the mediation co-ordinator will assign a roster mediator if the 180 day time period has expired and one of the parties requests it or the court orders it.
  • The parties may arrange mediation with a private mediator they select, a roster mediator they select, or a roster mediator appointed by the mediation co-ordinator (Rule 24.1.08 (2)).
  • Where a roster mediator is appointed, the roster mediator is required to schedule mediation immediately for a date to take placewithin 90 days. The parties are then required to file the material required by the rule and to attendon the scheduled date. (See below)
  • Where the parties have agreed to extension of the 180 days and they are selecting their own mediator, a deadline for completing mediation may be established in a timetable fixed by the written agreement of the parties or ordered by the court. The deadline is enforceable. (Rule 3.04)
  • If the action is set down for trial without completing mediation or advising the court of the date and time of a scheduled mediation, the parties will not be given a pre-trial date or trial date and will be required to appear before a master or judge.

NOTE: IF A ROSTER MEDIATOR IS APPOINTED, THE MEDIATOR IS REQUIRED TO SCHEDULE A MEDIATION AND THE PARTIES ARE REQUIRED TO ATTEND

Once a roster mediator is appointed by the court, the roster mediator has no discretion. He or she must schedule a mediation date within 90 days after the notice of appointment. (Rule 24.108 (7) & (7.1)) This time may only be extended by order.

Parties are required to file briefs and pleadings with the mediator at least 7 days before the mediation and are required to attend in person at the mediation session. (Rules 24.1.09 (7), (7.1) & 24.1.10 – 24.1.13) (Rules 24.1.10 & 24.1.11) Where an insurer is involved then the insurer may attend the mediation instead of the party him or herself.

Non compliance with the mediation rule by failing to file documents with the mediator or by failing to attend when scheduled may result in sanctions by the court including costs or loss of rights. Note that under the fee regulation, the defaulting party will be liable for all of the mediator’s fees. (O.R. 451/98 as amended)

  1. Mandatory Mediation in Estates Cases – Rule 75.1

Rule 75.1 creates a mandatory mediation regime for proceedings in Ottawa that fall within the list of proceedings in Rule 75.1.02 (1) (b). This includes contested applications to pass accounts (Rule 74.18), contested appointments of estate trustees (Rule 75.03), claims under part V of the Succession Law Reform Act(dependants’ relief), claims under the Substitute Decisions Act (guardianship applications) and certain other proceedings. Note that this list of actions is broader than the matters covered by Rules 74 & 75 and includes the matters exempt from Rule 77 under sub rules 77.02 (2) (b) – (e).

Rule 75.1 is very similar to Rule 24.1 but it does not contain default time lines for the mediation and it is first necessary to obtain directions from the court.

The following procedure applies in Ottawa:

  • The applicant must bring a motion for directions within 30 days of the last date for filing an appearance. Note that in Ottawa this is a motion to the master and may be returnable at 9:00 or 9:30 on Monday mornings booked through the motions office.
  • In contested passing of accounts the motion for direction is not necessary and the issue of mediation will be addressed by the judge on the return date for the application. (Rule 75.1.05 (5)
  • At the motion for directions the court will direct what issues are to be mediated, who are the parties, who is required to attend, the timing of the mediation, how the costs are to be shared, and such other matters as may be necessary to provide for an effective mediation. Note that the moving party should be specific about the proposed dispute resolution plan and should bring a draft order – on consent if possible. (If the matter is governed by Rule 75 then the motion for directions should also deal with the matters set out in Rule 75.06 (3)).
  • The parties must choose a mediator within 30 days. This may be a private mediator or a mediator chosen from the roster. (Rule 75.1.06 & 75.1.07 (1))
  • If 30 days has passed following the motion for directions and no mediator has been agreed upon then any party may request the mediation co-ordinator to appoint a roster mediator. (Rule 75.1.07 (2) & (6))
  • When a roster mediator is appointed, the mediator must immediately fix a date for the mediation and notify the parties who are then required to file material as required by the rule and to attend at the mediation as scheduled.
  • Default under this rule is dealt with in the same manner as Rule 24.1. In Ottawa this means the certificate of non-compliance will be referred to a case management master for possible sanctions. (Rule 75.1.10)

April 30th, 2015

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