Litigation

Possible Expansion of Ontario’s Mandatory Mediation Program

Court, especially civil courts, have been facing delays for months due to closures during COVID-19. For several months, only the most urgent cases have been allowed to proceed, limited to criminal and urgent family matters. Now that courts are functioning again, there are backlogs throughout the province as staff attempt to catch up with the cases that have piled up since March. In order to help alleviate some of the pressure on Ontario’s courts, the Ontario Bar Association has proposed an expansion of the Mandatory Mediation Program to new regions, in the hopes that some matters will be resolved before needing to go before a judge. Below, we will outline how the program currently works, and what the proposed changes include.

When and Where Does the Mandatory Mediation Program Currently Apply in Ontario?

The Mandatory Mediation Program was created in 1999 to help reduce the number of cases going to court in regions with high caseloads such as Toronto, Ottawa and Windsor. The program only applies to certain litigation matters, as set out under Rules 24.1 and 75.1 of Ontario’s Rules of Civil Procedure.

Under Rule 24.1, all civil actions (with certain exceptions) in Toronto, Ottawa and Windsor are required to enter mandatory mediation in an attempt to resolve the dispute before going to court. Exceptions include the matters covered under Rule 75.1, as well as family law matters, most construction lien cases, and class actions. Rule 75.1 addresses matters related to estates, trusts and substitute decisions. Per the Rule, these matters will be required to go to mandatory mediation unless there is a court order which states otherwise.

How Does the Mandatory Mediation Program Work?

The parties are required to select a qualified mediator. They can choose one from a list of mediators on the Program’s roster, or choose one on their own. If they fail to agree on a mediator, one will be appointed by a Local Mediation Coordinator. The mediation is required to take place within 180 days of the filing of the first defence, however, the parties can agree to consent to a postponement if they choose.

Within 180 days of the filing of the first defence, the Local Mediation Coordinator must receive one of the following documents:

  • a Consent to postpone the mediation date;
  • a court order postponing the date of the mediation;
  • a Notice of Name of Mediator and Date of Session; or
  • a Notice of Settlement

At least 7 days prior to the mediation, the parties must provide the mediator with a copy of the pleadings, a Statement of Issues and all related documentation. If the parties are able to reach an agreement on some or all of the issues, they will enter into a binding settlement agreement. If an agreement is not reached on all of the issues, the parties may proceed to litigation. The hope is then that the mediation will have helped to narrow the issues and focus the parties for litigation.

What are the Proposed Changes?

The Ontario Bar Association recently made a proposal requesting the expansion of the Program across the province. The OBA recognizes that it may not be feasible in every jurisdiction, due to the availability of qualified mediators in a given area. Further, some areas may not be experiencing delays in the courts, and so it may not be as pressing. However, the OBA points to the benefits of mediation in general and proposes that even in areas where it not needed, it could be highly beneficial.

Specifically, the OBA would like to see the Program expanded to the following areas:

  • East Region (courts located in Pembroke, Napanee, Belleville, Picton, Kingston, Brockville, Perth and Ottawa);
  • Central East Region (courts located in Bracebridge, Barrie, Newmarket, Lindsay, Durham, Peterborough and Coburg);
  • Central West Region (courts located in Owen Sound, Walkerton, Orangeville, Guelph, Milton and Brampton); and
  • Southwest Region (courts located in Goderich, Stratford, Woodstock, London, St. Thomas, Sarnia, Chatham and Windsor)

The OBA suggests that the expansion roll out as above for now, and suggests that ongoing monitoring will demonstrate a decrease in forum shopping, and a decrease in the length of litigation in those areas. Following that, the provincial government could consider expanding the program to the rest of the province.

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