Ontario Superior Court denies immediate mediation to party who went ‘full steam ahead’

The lawyers continued to exchange correspondence until Fortune's counsel, MacIsaac Gow, ultimately stated in an email that a mediation in 2024 was not reasonable and that they intended to bring a motion in July. The email did not explain why the mediation's proposed timing was unreasonable from the plaintiff, Raymond Fortune's perspective.

On the other hand, the defendant's counsel maintained that they still required satisfaction of outstanding undertakings prior to mediation.

Fraser Gow of MacIsaac Gow LLP stated in an affidavit that the Rules of Civil Procedure require that mandatory mediation occur within 180 days of filing the first defence in the action. Consequently, Gow asserted that there would be prejudice to the plaintiff if the mediation took place after September 25.

Hugh Brown of Bell Temple LLP proposed that the mediation occurs in early 2024 to provide time for the plaintiff's outstanding undertakings to be answered. Brown contended that the purpose of holding mediation would be defeated if the parties attended a mediation before the plaintiff's claim could be "fully appreciated," which could not be done until all undertakings had been satisfied. Further, Brown argued that some outstanding undertakings "speak directly to liability."

The Ontario Superior Court of Justice acknowledged that the Rules of Civil Procedure require a mediation session occur within 180 days after the first defence had been filed unless the court orders otherwise. Further, the court also noted that the purpose of mandatory mediation is to "reduce cost and delay in litigation and facilitate the early and fair resolution of disputes."

The court noted that the parties have agreed to an order that the mediation is to take place by October 31. The defendant's counsel requested that the order provide that the deadline for completion of the mediation be extended if the plaintiff has not satisfied all outstanding undertakings one month before the mediation.

The court refused to grant such an order but believes it would be beneficial for the parties to appear at a case conference in September so that the parties may provide updates on the status of the outstanding undertakings.

Additionally, the court pointed out that the 6-month period to hold mediation was to expire at the end of September. The parties have agreed to extend this date. The court found nothing in the record that shows what prejudice would be suffered by the plaintiff if the mediation occurred after September. The court said it was not unreasonable for Bell Temple to request that mediation take place after the plaintiff answered key outstanding undertakings.

The court stressed that "the Three C's of the Commercial List - cooperation, communication and common sense – are equally applicable in civil proceedings."

In the court's view, the plaintiff failed to act with common sense when it went "full steam ahead" in bringing the motion to schedule the date for mediation and should have cooperated with the proposed dates offered by the defendant's counsel.