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As of May 1, 2017, the practice direction regarding the timing
of mandatory mediations in Toronto has changed.
Mandatory mediations must now be
completed prior to an action being set
down for trial unless a judge or case management master orders
otherwise. This is a significant change from the past
practice direction that only required mandatory mediations to be
scheduled before the action could be set
down for trial. This change applies to all Toronto files that have
not yet been set down for trial.
We anticipate that this change to the practice direction will
lead to earlier mediations on Toronto matters. We are already
starting to see the impact of this change, in terms of
plaintiffs' counsel reaching out earlier than ever to schedule
mediations, some even seeking to schedule same at the same time as
Although this change will be helpful to keep files moving ahead
at a steady pace, it will require keen attention to ensure all
necessary information and documentation is obtained in a timely
fashion to allow for a productive mediation.
Failing to file the trial record and meet the new practice
direction requirements within five years of issuing the statement
of claim will...
On subrogation files, this practice direction change combined
with the changes to the Rules of Civil Procedure, causing
actions to be automatically dismissed (without warning) if not set
down for trial within 5 years, will make it very important to
arrange for timely mediations. Failing to file the trial record and
meet the new practice direction requirements within five years of
issuing the statement of claim will result in the action being
dismissed without warning.
Below is the practice direction wording which sets out the
specifics of what needs to be filed with the court to allow a trial
record or notice of readiness for pre-trial conference to be
Toronto Practice Direction Excerpt
- All actions commenced in or transferred to the Toronto Region
are subject to mandatory mediation under rule 24.1 except those
actions excluded in rules 24.1.04(2) and (2.1).
- A mediation session must take place within 180 days after the
first defence has been filed, unless a consent under rule
24.1.09(3) has been filed or the court orders otherwise.
- Court staff will not accept for filing a trial record (ordinary
action) or a notice of readiness for pre-trial conference
(Simplified Procedure action) unless the party setting the action
down for trial files a Certificate that:
a. Form 24.1A (Notice of Name of Mediator and Date of
Session) has been filed with the mediation coordinator and the
mediation session has taken place;
b. the report by mediator (indicating that the mediation has been
concluded) has been filed with the mediation coordinator;
c. an order has been obtained from a judge or case management
master exempting the action from mediation; or,
d. an order has been obtained from a judge or case management
master extending the deadline for mediation until after the action
is set down for trial.
These requirements will apply even where the parties have agreed
to postpone a mediation session to a date more than 180 days after
the first defence has been filed as permitted by rule 24.1.
- A motion for an order exempting the action from mediation
should be made to any master (unless the action is being case
managed by a judge or a specific master). The motion should be
returnable in motions court or by case conference if the action is
case managed. Motions in writing on consent will be considered if
sufficient reasons are given.
- In keeping with the requirement for mandatory mediation
and Rule 1.05, a judge may, at any stage in the
proceeding, order that the parties not take any further steps in
the proceeding, without leave of a judge, until a mandatory
mediation has taken place.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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