Cioffi v. Modelevich et al.
[Indexed as: Cioffi v. Modelevich]
Ontario Reports Ontario Superior Court of Justice Spies J. November 22, 2018 144 O.R. (3d) 222 | 2018 ONSC 7084
Case Summary
Insurance — Automobile insurance — Mediation — Costs — Plaintiff requesting mediation under Insurance Act — Section 258.6(1) of Act prevailing over provisions of Rules of Civil Procedure which required mediator's costs to be shared equally — Insurer required to pay full costs of mediation under s. 258.6(1) — Insurance Act, R.S.O. 1990, c. I.8, s. 258.6(1).
The plaintiff in a motor vehicle action requested a mediation under the Insurance Act. Section 258.6(1) of the Act provides that, where a plaintiff requests a mediation, the insurer shall pay the full costs. However, as this was a Toronto action, a mediation was mandatory pursuant to rule 24.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the costs of the mediator were to be shared equally. The plaintiff brought a motion for an order that the insurer was required to pay the full costs of the mediation.
Held, the motion should be granted.
There is a conflict between s. 258.6(1) of the Act and the Rules. The Act prevails by virtue of rule 1.02, which states that the Rules do not apply if a statute provides for a different procedure.
Cases referred to
Statutes referred to
Rules and regulations referred to
- Mediators' Fees (rule 24.1, Rules of Civil Procedure), O. Reg. 451/98, s. 4(2)
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.02, 24.1
MOTION for an order requiring the insurer to pay full costs of the mediation.
Vadim Kats, for plaintiff. David Sazant, for defendants Modelevich and Wagenkhecht.
Endorsement
[1] Endorsement of SPIES J.: — This is a motor vehicle action. The amount in issue is not large but I expect it is important to the defendant insurer. The issue is whether the insurer is required to pay the full cost of a recent mediation or only half of the cost. There is no dispute that s. 258.6(1) of the Insurance Act, R.S.O. 1990, c. I.8 provides that where a plaintiff requests a mediation, the insurer shall pay the full cost. However, there is also no dispute that as a Toronto action, a mediation is mandatory pursuant to rule 24.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and that the costs of the mediator are to be shared equally pursuant to s. 4(2) of O. Reg. 451/98 made under the Administration of Justice Act, R.S.O. 1990, c. A.6.
[2] The plaintiff argues that there is a conflict in the two statutes and that the Insurance Act prevails by virtue of rule 1.02, which provides that the Rules do not apply if a statute provides for a different procedure.
[3] In this case the plaintiff requested a mediation pursuant to the Insurance Act in a letter to counsel for the insurer and referred to that a second time in an e-mail to counsel before the mediation was scheduled. The insurer did not object or respond that the mediation was not going to proceed under the Insurance Act.
[4] In my view, there is a conflict between the Insurance Act and the Rules. Although one could argue that there is not -- if one assumes there could be two mediations -- one mandatory and one requested, the reality is that the mediation that proceeded in this case will count as the mandatory mediation. The conflict between the two statutes is with respect to the responsibility for costs.
[5] Mr. Sazant argued that the plaintiff's position will result in all plaintiffs proceeding in this fashion and that may be true, but that is only the case for motor vehicle actions where the Insurance Act applies.
[6] The clear intention of the Insurance Act was to allow a plaintiff to request a mediation to be paid for by the insurer in the hope that the action might be resolved. The policy reasons seem clear -- I do not think it is meant to apply only where a plaintiff is impecunious as suggested by Mr. Sazant. Clearly, the legislature assumed that in these circumstances the insurer is in a better position to absorb the costs and pay for the costs of the mediation.
[7] The insurer also argued that the motion is frivolous and that this issue could have been dealt with at the end of the action as it was in Lakew v. Munro, [2014] O.J. No. 6274, 2014 ONSC 7316 (S.C.J.), at para. 82.
[8] I disagree. The mediator is entitled to be paid now so it is only fair that who should pay be determined now.
[9] For these reasons, an order shall go in accordance with para. 1 of the plaintiff's notice of motion.
[10] As for costs -- the plaintiff filed a cost outline seeking $7,716.70 on a partial indemnity basis. The insurer's costs on the same basis are only $2,395.
[11] I find the plaintiff's costs are excessive. Even without deciding whether or not plaintiff's counsel should have cleared the date for this motion with Mr. Sazant, which in my view should always be done absent real urgency, and without deciding whether this motion should have gone before a master -- there was no reason for Mr. Kats -- a 19-year call -- to prepare for and attend this motion. Given the amount in issue Mr. Silverberg -- a 2015 call -- should have been the one to attend. I note Mr. Sazant is a 2016 call.
[12] In all the circumstances and in particular considering the reasonable expectation of the parties, I fix the plaintiff's costs of the motion in the amount of $3,500, all inclusive.
Motion granted.
End of Document