Carevest Capital Inc. v. Limmer Corporation Inc. et al.

[Indexed as: Carevest Capital Inc. v. Limmer Corporation Inc.]

100 O.R. (3d) 378

2010 ONCA 41

Court of Appeal for Ontario,

MacPherson, Simmons and LaForme JJ.A.

January 22, 2010

Civil procedure -- Summary judgment -- Party not precluded from obtaining summary judgment without attending mediation session in action governed by mandatory mediation rule so long as party complies with rules prescribing timelines for holding mediation session -- Motion judge not erring in granting summary judgment where defendant had not raised substantive defence to mortgage action and it would have been pointless to require parties to go through mediation -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 24.1.

In an action for payment on a mortgage and related guarantees, the plaintiff moved for summary judgment. The defendants did not file material to support a substantive defence to the action, but rather claimed that the plaintiff was not entitled to obtain summary judgment because the action was subject to rule 24.1 of the Rules of Civil Procedure (the mandatory mediation rule) and no mediation session had been held. The motion judge rejected that argument and granted summary judgment. The defendants appealed.

Held, the appeal should be dismissed.

Provided the moving party brings a summary judgment motion within the timelines stipulated in the Rules for holding a mediation session, the moving party is entitled to obtain summary judgment.

APPEAL from the judgment of Maranger J. of the Superior Court of Justice dated April 8, 2009 for the plaintiff in a mortgage action.

Cases referred to Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Bristol-Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533, [2005] S.C.J. No. 26, 2005 SCC 26, 253 D.L.R. (4th) 1, 334 N.R. 55, J.E. 2005-996, 39 C.P.R. (4th) 449, 139 A.C.W.S. (3d) 552; [page379] Glykis v. Hydro-Québec, [2004] 3 S.C.R. 285, [2004] S.C.J. No. 56, 2004 SCC 60, 244 D.L.R. (4th) 277, 325 N.R. 369, J.E. 2004-1849, 133 A.C.W.S. (3d) 1078, REJB 2004-70875; Royal Bank of Canada v. Beckell Farms (1987) Ltd., [2007] O.J. No. 568, 221 O.A.C. 173, 155 A.C.W.S. (3d) 305 (Div. Ct.)

Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43 [as am.] Insurance Act, R.S.O. 1990, c. I.8, s. 258.6 Queen's Bench Act, R.S.S. 1978, c. Q-1, ss. 54.2 [rep. S.S. 1998, c. Q-1.01], (1) [rep. S.S. 1998, c. Q-1.01] Queen's Bench Act, 1998, S.S. 1998, c. Q-1.01, s. 42(1.1), (1.2) Substitute Decisions Act, 1992, S.O. 1992, c. 30 [as am.] Succession Law Reform Act, R.S.O. 1990, c. S.26 [as am.], Part V

Rules and regulations referred to Queen's Bench (Civil Mediation) Regulations, R.S.S. c. Q-1, Reg. 6, s. 5(1)(b) [rep. c. Q-1.01, Reg. 1] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, (1), 20, 20.01(1) [as am.], (2), 24.1, 24.1.01, 24.1.02, 24.1.04(1) [as am.], (2) [as am.], (2.1) [as am.], 24.1.05, 24.1.09, (1) [as am.], (2) [as am.], (3) [as am.], (4), (5) [as am.], 64

Authorities referred to Driedger, Elmer, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)

Peter Hargadon, for appellants. Ian Houle, for respondent.

The judgment of the court was delivered by

SIMMONS J.A.: --

I. Introduction

[1] The appellants appeal from a summary judgment granted by Maranger J. in an action claiming the amount owing on a mortgage and related guarantees.

[2] The appellants did not file material in the court below to support a substantive defence to the action. Instead, they claimed that the respondent was not entitled to obtain summary judgment because the action is subject to the mandatory mediation rule in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and no mediation session had been held. The motion judge rejected this argument, holding that the mandatory mediation rule does not expressly prohibit a summary judgment motion prior to mandatory mediation and that mediation would be a needless step in this case. He therefore granted summary judgment. [page380]

[3] The issue on appeal is whether a party may obtain summary judgment before a mediation session is held in an action governed by rule 24.1.

[4] For the reasons that follow, I conclude that, provided the moving party brings a summary judgment motion within the timelines stipulated in the Rules for holding a mediation session, the moving party is entitled to obtain summary judgment. In all the circumstances of this case, I would dismiss the appeal.

II. Background

[5] The facts of this case are straightforward.

[6] The respondent sued the appellants for payment on a mortgage and related guarantees in a statement of claim dated June 17, 2008. After serving a notice of intent to defend on August 5, 2008, the appellants delivered their statement of defence and counterclaim on August 14, 2008. The respondent delivered its reply and defence to counterclaim on November 18, 2008.

[7] On August 7, 2008, the mediation office at the Superior Court of Justice in Ottawa sent counsel for all parties a Notice of Requirement to Mediate setting out the following timelines: -- the parties were required to attend a mediation session within 90 days after the first defence in the action was filed; and -- the respondent was required to file a notice with the mediation coordinator within 30 days of August 6, 2008, stating the mediator's name and the date of the mediation session.

[8] On September 2, 2008, counsel for the respondent wrote to the mediation office to advise that the parties had consented to a 60-day extension of the time for selecting a mediator and fixing a mediation date.

[9] On October 30, 2008, counsel for the respondent forwarded a Notice of Name of Mediator and Date of Session to counsel for the appellants. The notice named the mediator but stated the date of the mediation session had yet to be fixed. Subsequently, on November 6, 2008, the parties obtained a consent order extending the time for completion of the mediation by 120 days.

[10] On January 5, 2009, counsel for the respondent served a notice of motion for summary judgment returnable March 26, 2009. The appellants did not respond to the motion until March 23, 2009. On that date, they served material challenging the respondent's right to obtain summary judgment prior to attending a mediation session. [page381]

[11] In an affidavit sworn by Mr. Guibault on behalf of all of the appellants, he acknowledged that "under the [November 6, 2008] Order . . . the time for mediation would have been extended to approximately the present time". However, he also said:

The Defendants wish to have a mediation in this proceeding as required by the Rules of Civil Procedure. The Defendants are willing to attend a mediation at an early date and to participate therein in good faith in an effort to resolve the matters at issue in this proceeding by agreement between the Parties.

[12] On April 8, 2009, the motion judge granted the respondent's request for summary judgment. In his reasons, he observed that there were "no controverted factual issues in this case" and said that "normally the relief requested . . . would be granted axiomatically". However, he also noted that the appellants had raised "a technical issue submitting that the summary judgment motion should be either stayed or dismissed because [the respondent] failed to attend at and/or engage in mandatory mediation . . . prior to initiating the motion".

III. Rule 24.1

[13] Rule 24.1 is entitled "Mandatory Mediation". Attached as Appendix "A" to these reasons is the full text of this rule. Amendments to rule 24.1 that came into force on January 1, 2010 are included in the appendix in [italics]. References to the rules within the body of these reasons are to the provisions as they stood at the relevant time.

[14] Rule 24.1.01 provides for mandatory mediation in case managed actions in order to "reduce cost and delay" and to "facilitate the early and fair resolution of disputes".

[15] Rule 24.1.02 explains the mediation process:

24.1.02 In mediation, a neutral third party facilitates communication among the parties to a dispute, to assist them in reaching a mutually acceptable resolution.

[16] Rule 24.1.04(1) stipulates that the mandatory mediation rule applies to actions "commenced in the City of Ottawa on or after January 1, 2001". However, rule 24.1.04(2.1) provides that the mandatory mediation rule does not apply to an action under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 or Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26, nor, in certain circumstances, to an action that was the subject of a mediation under s. 258.6 of the Insurance Act, R.S.O. 1990, c. I.8. [See Note 1 below] [page382]

[17] Rule 24.1.05 allows the court to make an order exempting an action from the mandatory mediation rule.

[18] Rule 24.1.09 is particularly important. It sets out the timelines for holding a mediation, permits the court to change the timelines and specifies the criteria the court must consider in determining whether to vary the timelines:

24.1.09(1) A mediation session shall take place within 90 days after the first defence has been filed, unless the court orders otherwise.

(2) In considering whether to exercise the power conferred by subrule (1), the court shall take into account all the circumstances, including, (a) the number of parties, the state of the pleadings and the complexity of the issues in the action; (b) whether a party intends to bring a motion under Rule 20 (Summary Judgment), Rule 21 (Determination of an Issue Before Trial) or Rule 22 (Special Case); (c) whether the mediation will be more likely to succeed if the 90-day period is extended to allow the parties to obtain evidence under, (i) Rule 30 (Discovery of Documents), (ii) Rule 31 (Examination for Discovery), (iii) Rule 32 (Inspection of Property), (iv) Rule 33 (Medical Examination), or (v) Rule 35 (Examination for Discovery by Written Questions); and (d) whether, given the nature of the case or the circumstances of the parties, the mediation will be more likely to succeed if the 90-day period is extended or abridged.

(3) Despite subrule (1), in the case of an action on the standard track, the mediation session may be postponed for up to 60 days if the consent of the parties is filed with the mediation coordinator.

(4) The parties shall choose a mediator under subrule 24.1.08(2).

(5) Within 30 days after the filing of the first defence, the plaintiff shall file with the mediation coordinator a notice (Form 24.1A) stating the mediator's name and the date of the mediation session. [See Note 2 below]

IV. The Motion Judge's Reasons

[19] In essence, the motion judge concluded that rule 24.1 does not prohibit a party from obtaining summary judgment prior to attending a mediation session and that, in the context of a case where it is clear there is no genuine issue for trial, it does not make [page383] sense to require the parties to go through the process of mediation. After reviewing rule 20, rule 24.1 and rule 1.04(1), he said:

. . . in a case where the result of a summary judgment motion is clear, such as the case at bar, then to conduct a mandatory mediation in advance of that motion is a needless step in a proceeding that uselessly increases costs.

It seems to me that although not expressly exempt in Rule 24.1, Rule 20 clearly provides what is necessary to allow for the advancing of a summary judgment motion and it is silent respecting mediation, and in this case every step required by that rule was undertaken.

V. Discussion

[20] The issue on appeal raises a question of the proper interpretation of rule 24.1.

[21] It can now be said that it is trite law that provisions of an Act are to be interpreted "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26, citing Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 83.

[22] The proper approach to interpreting regulations is quite similar; Driedger's modern rule applies, requiring courts to look at the entire context and purpose of the provision, as well as its grammatical and ordinary meaning. In this case of regulations, this context includes the purpose and scheme of their enabling statute and other regulations made pursuant to it: Glykis v. Hydro-Québec, 2004 SCC 60, [2004] 3 S.C.R. 285, [2004] S.C.J. No. 56, at para. 5; Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533, [2005] S.C.J. No. 26, at paras. 37-38, 97-99.

[23] The Rules of Civil Procedure may be a somewhat unique regulation, as they are essentially the product of the Civil Rules Committee, however they are a regulation nonetheless. Any consideration of an individual rule must involve a consideration of the object, purpose and structure of the Rules as a whole, as well as, where relevant, the Courts of Justice Act, R.S.O. 1990, c. C.43.

[24] Considering rule 24.1 in light of these principles, in my opinion several factors point to the conclusion that a party may obtain summary judgment without attending a mediation session in an action governed by the mandatory mediation rule so long as the party complies with the rules prescribing timelines for holding a mediation session.

[25] First, rule 24.1 creates a scheme of mandatory mediation premised on a mediation session being held within a particular [page384] timeline: 90 days from the date on which the first defence is filed. While rule 24.1 makes it mandatory to hold a mediation within this specified timeline, it does not make it mandatory to hold a mediation in every case.

[26] On its face, rule 24.1 does not apply to undefended proceedings. Similarly, because rule 20 permits a party to move for summary judgment before a defence is filed in limited circumstances, the mandatory mediation provision would not be triggered in a case where a plaintiff moved for and obtained summary judgment prior to a defence being filed. [See Note 3 below]

[27] Second, rule 24.1 does not, on its face, prohibit a party from moving for and obtaining summary judgment once the 90-day clock has started ticking. This is important because other jurisdictions have chosen to make it clear that, once pleadings have closed, the parties to a contested matter must attend a mediation session before taking any further steps in the proceeding: see the Queen's Bench Act, R.S.S. 1978, c. Q-1 (Sask.), s. 54.2(1). [See Note 4 below] Had the Rules Committee intended to prohibit motions for summary judgment while the 90-day clock is ticking, it could easily have said so.

[28] Third, not only does rule 24.1 not prohibit a party from applying for and obtaining a summary judgment while the 90-day clock is ticking, rule 24.1.09(2) provides that in deciding [page385] whether to exercise the power contained in rule 24.1.09(1) to extend or abridge the time for holding a mediation, the court shall consider "whether a party intends to bring a motion [for summary judgment]".

[29] On a plain reading of rule 24.1.09(2), it permits the court to extend the time for holding a mediation session so that a party may bring a motion for summary judgment. If the court can extend the time for attending a mediation session so that a summary judgment motion can be brought, it only makes sense that the moving party can also obtain summary judgment before attending a mediation session. It would make little sense to extend the time for attending a mediation session so that a summary judgment motion can be brought if the moving party could not obtain summary judgment before attending a mediation session. Rule 24.1 is aimed at trying to avoid unnecessary expense and delay, not at creating it.

[30] Fourth, as the motion judge observed, Rule 20 sets out the circumstances in which a summary judgment motion may be brought; it, like rule 24.1, contains no prohibition against applying for and obtaining a summary judgment while the 90-day clock is ticking.

[31] Fifth, rule 1.04 supports interpreting rule 24.1 to permit a party to obtain a summary judgment prior to attending a mediation session. Rule 1.04 provides:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[32] As the motion judge observed, in some instances it will be obvious that a mediation session will, in all likelihood, constitute no more than an extra step in the proceeding. In a case such as this, where the claim is on a mortgage and related written guarantees, and where no defence on the merits is advanced on the summary judgment motion, holding a mediation is unlikely to secure the just, most expeditious and least expensive determination of the proceeding on its merits.

[33] Further, I do not agree that the respondent was required to apply for an exemption from mediation before proceeding with its motion. For the reasons I have explained, in my view, a party is entitled to move for summary judgment before attending a mediation session provided the party complies with the timelines stipulated in the Rules for attending a mediation session. If the motion can be heard within the timelines, there is no need to obtain an exemption.

[34] That said, I also observe that nothing in Rule 20 stops the 90-day clock from running once a summary judgment motion is [page386] launched. Practicalities are not a license to ignore mandatory provisions in the Rules. If a summary judgment motion cannot be heard and determined within the 90-day timeline set out in rule 24.1 (or any extended timeline the parties are entitled to consent to), it is incumbent on the parties to attend a mediation session or apply for an extension of the timeline under rule 24.1.09.

[35] On the facts of this case, the timeline for completing the mediation was first extended for 60 days on September 2, 2008, and then for a further 120 days by consent order on November 6, 2008; the timeline therefore expired on around March 6, 2009; and the summary judgment motion was not heard until March 26, 2008. In these circumstances, it was incumbent on the respondent to either attend a mediation session or apply for an extension of time for doing so.

[36] In oral submissions on the appeal, the respondent's counsel explained that, when the summary judgment motion was served, March 26, 2008 was the first available date. Moreover, it appears that the issue below was the respondent's right to bring a summary judgment motion before attending a mediation session; no issue was raised about the fact that the time for completing the mediation had already expired.

[37] Given these circumstances, the fact that the action involved a claim on a mortgage and related guarantees, and the fact that the appellants filed no materials to support a substantive defence, I have no doubt that the motion judge would have granted an extension of the time for attending a mediation session had he been asked to do so. In these circumstances, I see no error in the motion judge's conclusion that the respondent was entitled to proceed with its summary judgment motion before attending a mediation session.

VI. Disposition

[38] Based on the foregoing reasons, the appeal is dismissed. In all the circumstances, I would make no order as to costs.

Appeal dismissed. [page387]

APPENDIX "A"

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 24.1

24.1.01 This Rule provides for mandatory mediation in case managed actions, in order to reduce cost and delay in litigation and facilitate the early and fair resolution of disputes.

24.1.01 This Rule provides for mandatory mediation in specified actions, in order to reduce cost and delay in litigation and facilitate the early and fair resolution of disputes.

24.1.02 In mediation, a neutral third party facilitates communication among the parties to a dispute, to assist them in reaching a mutually acceptable resolution.

24.1.03 In rules 24.1.04 to 24.1.16,

"defence" means, (a) [Revoked] (b) a notice of intent to defend, (c) a statement of defence, and (d) a notice of motion in response to an action, other than a motion challenging the court's jurisdiction

"mediation co-ordinator" means the person designated under rule 24.1.06.

24.1.04(1) This Rule applies to actions that are, (a) commenced in, (i) the City of Toronto on or after January 4, 1999, (ii) The Regional Municipality of Ottawa-Carleton on or after January 4, 1999 but before January 1, 2001, (iii) the City of Ottawa on or after January 1, 2001, or (iv) the County of Essex on or after December 31, 2002; and (b) described in subrule (2).

24.1.04(1) This Rule applies to the following actions:

1. Actions that were governed by this Rule immediately before January 1, 2010.

2. Actions that are commenced in one of the following counties on or after January 1, 2010: i. The City of Ottawa. ii. The City of Toronto. iii. The County of Essex.

(2) The actions referred to in clause (1)(b) are, [page388] (0.a) actions governed by Rule 78 (Toronto Civil Case Management Pilot Project); (a) actions governed by Rule 77 (Civil Case Management); and (b) actions governed by Rule 76 (Simplified Procedure) and assigned to mandatory mediation by the regional senior judge.

(2) Despite subrule (1), this Rule does not apply to, (a) actions to which Rule 75.1 (Mandatory Mediation -- Estates, Trusts and Substitute Decisions) applies; (b) actions in relation to a matter that was the subject of a mediation under section 258.6 of the Insurance Act, if the mediation was conducted less than a year before the delivery of the first defence in the action; (c) actions placed on the Commercial List established by practice direction in the Toronto Region; (d) actions under Rule 64 (Mortgage Actions); (e) actions under the Construction Lien Act, except trust claims; and

Actions under the Bankruptcy and Insolvency Act (Canada).

(2.1) Despite subrules (1) and (2), this Rule does not apply to:

1. An action under the Substitute Decisions Act, 1992 or Part V of the Succession Law Reform Act.
2. An action in relation to a matter that was the subject of a mediation under section 258.6 of the Insurance Act, if the mediation was conducted less than a year before the delivery of the first defence in the action.

(2.1) Despite subrule (1), this Rule, (a) applies to an action commenced under the Class Proceedings Act, 1992 only if certification as a class proceeding has been denied; and (b) does not apply to actions certified as class proceedings under the Class Proceedings Act, 1992.

(3) In an action to which the Proceedings Against the Crown Act applies, if the notice required by section 7 of that Act has not been served, the Crown in right of Ontario is entitled to participate in mediation under this Rule but is not required to do so.

(4) Clause (2)(0.a) is revoked on January 1, 2010.

24.1.05 The court may make an order on a party's motion exempting the action from this Rule.

24.1.06 The Attorney General or his or her delegate may designate a person as mediation co-ordinator for a county named in the Schedule to subrule 24.1.04(1), to be responsible for the administration of mediation in the county under this Rule.

24.1.06 The Attorney General or his or her delegate may designate a person as mediation co-ordinator for a county named in subrule 24.1.04(1), to be responsible for the administration of mediation in the county under this Rule. [page389]

24.1.07(1) There shall be a local mediation committee in each county named in the Schedule to subrule 24.1.04(1).

24.1.07(1) There shall be a local mediation committee in each county named in subrule 24.1.04(1).

(2) The members of each committee shall be appointed by the Attorney General so as to represent lawyers, mediators, the general public and persons employed in the administration of the courts.

(3) The Chief Justice of the Superior Court of Justice shall appoint a judge to be a member of each committee.

(3) The Chief Justice of the Superior Court of Justice shall appoint a judge or a case management master to be a member of each committee.

(4) Each committee shall, (a) compile and keep current a list of mediators for the purposes of subrule 24.1.08(1), in accordance with guidelines approved by the Attorney General; (b) monitor the performance of the mediators named in the list; (c) receive and respond to complaints about mediators named in the list.

(5) In carrying out their functions under subrule (4), committees may add mediators to the list and remove mediators from the list.

24.1.08(1) The mediation co-ordinator for a county shall maintain a list of mediators for the county, as compiled and kept current by the local mediation committee.

(2) A mediation under this Rule shall be conducted by, (a) a person chosen by the agreement of the parties from the list for a county; (b) a person assigned by the mediation co-ordinator under subrule 24.1.09(6) from the list for the county; or (b) a person assigned by the mediation co-ordinator under subrule 24.1.09(6) or (6.1) from the list for the county; or (c) a person who is not named on a list, if the parties consent.

(3) Every person who conducts a mediation under subrule (2), whether named on the list or not, is required to comply with this Rule.

(4) Without limiting the generality of subrule (3), every person who conducts a mediation under subrule (2) shall comply with subrule 24.1.15(1) (mediator's report).

24.1.09(1) A mediation session shall take place within 90 days after the first defence has been filed, unless the court orders otherwise.

24.1.09(1) A mediation session shall take place within 180 days after the first defence has been filed, unless the court orders otherwise.

(2) In considering whether to exercise the power conferred by subrule (1), the court shall take into account all the circumstances, including, [page390] (a) the number of parties, the state of the pleadings and the complexity of the issues in the action; (b) whether a party intends to bring a motion under Rule 20 (Summary Judgment), Rule 21 (Determination of an Issue Before Trial) or Rule 22 (Special Case); (c) whether the mediation will be more likely to succeed if the 90-day period is extended to allow the parties to obtain evidence under, (c) whether the mediation will be more likely to succeed if the 180-day period is extended to allow the parties to obtain evidence under, (i) Rule 30 (Discovery of Documents), (ii) Rule 31 (Examination for Discovery), (iii) Rule 32 (Inspection of Property), (iv) Rule 33 (Medical Examination), or (v) Rule 35 (Examination for Discovery by Written Questions); and (d) whether, given the nature of the case or the circumstances of the parties, the mediation will be more likely to succeed if the 90-day period is extended or abridged. (d) whether, given the nature of the case or the circumstances of the parties, the mediation will be more likely to succeed if the 180-day period is extended or abridged.

(2.1) Despite subrule (1), in the case of an action described in paragraph 1 of subrule 24.1.04(1), the 180-day period begins to run on January 1, 2010.

(3) Despite subrule (1), in the case of an action on the standard track, the mediation session may be postponed for up to 60 days if the consent of the parties is filed with the mediation co-ordinator.

(3) Despite subrule (1), the mediation session may be postponed to a later date if, (a) the parties consent to the date in writing, and (b) the consent is filed with the mediation co-ordinator.

(4) The parties shall choose a mediator under subrule 24.1.08(2).

(5) Within 30 days after the filing of the first defence, the plaintiff shall file with the mediation co-ordinator a notice (Form 24.1A) stating the mediator's name and the date of the mediation session.

(5) Before setting the action down for trial, one of the parties shall file with the mediation co-ordinator, (a) a notice (Form 24.1A) stating the mediator's name and the date of the mediation session; or (b) a mediator's report under subrule 24.1.15(1) indicating that the mediation has been concluded.

(6) If the mediation co-ordinator does not, within the times provided, if any, receive an order under subrule (1), a consent under subrule (3), a notice [page391] under subrule (5), a mediator's report or a notice that the action has been settled, he or she shall immediately assign a mediator from the list.

(6) If the mediation co-ordinator does not, within 180 days after the first defence has been filed, receive an order under subrule (1), a consent under subrule (3), a notice under clause (5)(a), a mediator's report or a notice that the action has been settled, he or she shall immediately assign a mediator from the list, unless the court orders otherwise.

(6.1) If the mediation co-ordinator does not, within the time provided by an order under subrule (1) or a consent under subrule (3), receive a notice under clause (5)(a), a mediator's report or a notice that the action has been settled, and the action is set down for trial, he or she shall immediately assign a mediator from the list, unless the court orders otherwise.

(7) The assigned mediator shall immediately fix a date for the mediation session and shall, at least 20 days before that date, serve on every party a notice (Form 24.1B) stating the place, date and time of the session and advising that attendance is obligatory.

(7.1) The date fixed for the mediation session shall be within 90 days after the appointment of the mediator, unless the court orders otherwise.

(8) The assigned mediator shall provide a copy of the notice to the mediation co-ordinator.

24.1.09.1(1) This rule (rule 24.1.09.1) applies to actions governed by Rule 78 (Toronto Civil Case Management Pilot Project).

(2) Despite subrules 24.1.09(1) and (5), (a) in the case of a wrongful dismissal action, a mediation session shall take place within 150 days after the close of pleadings, unless the court orders otherwise, and the plaintiff shall file the notice described in subrule 24.1.09(5) at least 30 days before the date of the mediation session; (b) in the case of an action governed by Rule 76 (Simplified Procedure) that is assigned to mandatory mediation by the regional senior judge, a mediation session shall take place within 150 days after the close of pleadings, unless the court orders otherwise, and the plaintiff shall file the notice described in subrule 24.1.09(5) at least 30 days before the date of the mediation session; and (c) in the case of any other action, a mediation session shall take place at the stage at which the parties agree that mediation is most likely to be effective, but in any case within 90 days after the action is set down for trial, unless the court orders otherwise, and the plaintiff shall file the notice described in subrule 24.1.09(5) at least 30 days before the date of the mediation session.

(3) This rule (rule 24.1.09.1) is revoked on January 1, 2010.

24.1.10(1) At least seven days before the mediation session, every party shall prepare a statement in Form 24.1C and provide a copy to every other party and to the mediator.

(2) The statement shall identify the factual and legal issues in dispute and briefly set out the position and interests of the party making the statement. [page392]

(3) The party making the statement shall attach to it any documents that the party considers of central importance in the action.

(4) The plaintiff shall include a copy of the pleadings with the copy of the statement that is provided to the mediator.

(5) If it is not practical to conduct a mediation session because a party fails to comply with subrule (1), the mediator shall cancel the session and immediately file with the mediation co-ordinator a certificate of non-compliance (Form 24.1D).

24.1.11(1) The parties, and their lawyers if the parties are represented, are required to attend the mediation session unless the court orders otherwise.

(1.1) If an insurer may be liable to satisfy all or part of a judgment in the action or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment in the action, a representative of the insurer is also required to attend the mediation session, unless the court orders otherwise.

(1.1) Unless the court orders otherwise, if an insurer may be liable to satisfy all or part of a judgment in the action or to indemnity or reimburse an insured party for money paid in satisfaction of all or part of a judgment in the action, (a) a representative of the insurer shall attend the mediation session; and (b) despite subrule (1), the insured party is not required to attend the mediation session.

(2) A party who requires another person's approval before agreeing to a settlement shall, before the mediation session, arrange to have ready telephone access to the other person throughout the session, whether it takes place during or after regular business hours.

24.1.12 If it is not practical to conduct a scheduled mediation session because a party fails to attend within the first 30 minutes of the time appointed for the commencement of the session, the mediator shall cancel the session and immediately file with the mediation co-ordinator a certificate of non-compliance (Form 24.1D).

24.1.13(1) When a certificate of non-compliance is filed, the mediation co-ordinator shall refer the matter to a case management master or case management judge.

24.1.13(1) When a certificate of non-compliance is filed, the mediation co-ordinator shall refer the matter to a judge or case management master.

(2) The case management master or case management judge may convene a case conference under subrule 77.13(1), and may,

(2) The judge or case management master may convene a case conference under rule 77.08, and may, (a) establish a timetable for the action; (b) strike out any document filed by a party; (c) dismiss the action, if the non-complying party is a plaintiff, or strike out the statement of defence, if that party is a defendant; (d) order a party to pay costs; [page393] (e) make any other order that is just.

(3) Subrules 77.13(7) and 77.14(9) do not apply to the case conference.

(3) [Revoked]

24.1.14 All communications at a mediation session and the mediator's notes and records shall be deemed to be without prejudice settlement discussions.

24.1.15(1) Within 10 days after the mediation is concluded, the mediator shall give the mediation co-ordinator and the parties a report on the mediation.

(2) The mediation co-ordinator for the county may remove from the list maintained under subrule 24.1.08(1) the name of a mediator who does not comply with subrule (1).

(3) If there is an agreement resolving some or all of the issues in dispute, it shall be signed by the parties or their lawyers.

(4) If the agreement settles the action, the defendant shall file a notice to that effect, (a) in the case of an unconditional agreement, within 10 days after the agreement is signed; (b) in the case of a conditional agreement, within 10 days after the condition is satisfied.

(5) Where a party to a signed agreement fails to comply with its terms, any other party to the agreement may, (a) make a motion to a judge for judgment in the terms of the agreement, and the judge may grant judgment accordingly; or (b) continue the action as if there had been no agreement.

24.1.16(1) With the consent of the parties the court may, at any stage in the action, make an order requiring the parties to participate in an additional mediation session.

(2) The court may include any necessary directions in the order.

(3) Rules 24.1.09 to 24.1.15 apply in respect of the additional session, with necessary modifications.

Notes

Note 1: Notably, under the amendments that came into force on January 1, 2010, mortgage actions governed by Rule 64 are no longer subject to mandatory mediation: see rule 24.1.04(2)(d).

Note 2: As of January 1, 2010, the 90-day time limit for holding a mediation session has been replaced with a 180-day limit: see rule 24.1.09(1), as amended.

Note 3: The relevant portions of Rule 20 provide:

20.01(1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.

(2) The plaintiff may move, without notice for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just.

Once leave is obtained under rule 20.01(2), a plaintiff's obligation is limited to providing the defendant with reasonable notice of the summary judgment motion. It is then up to the defendant to file a prompt defence or other response to the Rule 20 motion: Royal Bank of Canada v. Beckell Farms (1987) Ltd., [2007] O.J. No. 568, 221 O.A.C. 173 (Div. Ct.), at paras. 10-12.

Note 4: This statute was repealed and replaced by the Queen's Bench Act, 1998, S.S. 1998, c. Q-1.01. Section 42(1.1) of the 1998 Act contains language that is substantially similar to s. 54.2 of the old Act. Section 42(1.2) of the 1998 Act specifically permits a party to bring a motion to defer mediation until after another step in proceedings has been taken. Deferring mediation was available and under the old Act under a similarly worded provision: see Queen's Bench (Civil Mediation) Regulations, R.S.S. c. Q-1, Reg. 6, s. 5(1)(b).