Trial Counsel for Law Firms

New Rule for Toronto Actions: Mediation before Trial Set Down

Mediation is mandatory for Toronto actions.

Of course, “mandatory mediation” is an oxymoron because mediation is supposed to be a voluntary process.

Prior to May 1, 2017, a party could set an action down for trial provided that mediation was complete or scheduled.  From May 1, 2017 onwards, mediation must be complete before an action can be set down for trial, unless there is a Court order otherwise.

Click here for a link to the practice direction.

Click here for the new certificate to confirm mediation complete or there is a Court order otherwise.

Click here for Mick’s Trial Manual resources on setting actions down for trial.

Is making the completion of mediation prior to setting actions down for trial good or bad?  Overall, it will lengthen the amount of time to get to trial and will decrease the effectiveness of mediation because mediation will be further away from trial.  Other consequences are as follows:

  • From the perspective of the Courts, it means dealing with fewer trial records, which is good for the Courts.
  • For mediatiors, it means their services are more important than setting actions down for trial, which is good for mediators.
  • For plaintiffs, it means that civil litigation takes longer, which is bad for plaintiffs.
  • For defence, it means civil litigation takes longer, which is good for defence.

 

*** Update*** Shortly after this post, the Toronto Courts announced a Toronto Trial Sittings Project, aimed at speeding up personal injury trials.  I anticipate this will speed up the length of time to get to trial because trial sittings are an effective way for Courts to trigger settlements.

Mick Hassell, Trial Counsel for Law Firms

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