Mandatory Mediation

June 11, 2012 Hull & Hull LLP Estate & Trust Tags: 0 Comments

In last week’s blog, I wrote about the Toronto Estates List, and how it is one of the unique characteristics of practicing in the field of estates, wills, and trusts in Toronto.  Continuing with this theme, today’s blog focuses on another unique characteristic, that being mandatory mediation under Rule 75.1 of the Rules of Civil Procedure.  Specifically, the Rule applies to proceedings that are commenced in: the City of Toronto; the Regional Municipality of Ottawa-Carleton; the City of Ottawa; and the County of Essex.

Not only must the proceeding commence in one of the above named jurisdictions, but the proceeding must be based on: (a) an application to pass accounts, if it is contested; (b) formal proof of testamentary instrument, objection to issuing certificate of appointment, return of certificate, or claims against an estate; (c) Part V of the Succession Law Reform Act; (d) the Substitute Decisions Act; (e) the Absentee Act, the Charities Accounting Act, the Estates Act, the Trustee Act, or the Variation of Trusts Act; (f) subrule 14.05(3), if the matter at issue relates to an estate or trust, or; (g) subsection 5(2) of the Family Law Act.  Under Rule 75.1.04, despite a proceeding falling within, the Court has the power to exempt parties from mediation.

Within 30 days after the last day for serving a notice of appearance, applicants are required to bring a motion for directions relating to the conduct of the mediation.  At the motion, the court may direct such matters as: the issues to be mediated; who was carriage of the mediation and who shall respond; within what times the mediation session shall take place; which parties are required to attend the mediation session in person, and how they are to be served; how the cost of the mediation is to be apportioned among the designated parties; and any other matter that may be desirable to facilitate the mediation.  Upon receipt of the court order for directions, the parties have 30 days to choose a mediator.  If the parties fail to select a mediator within this time period, the party who is designated with carriage of the mediation, must immediately file with the Local Mediation Coordinator a request to assign a mediator. The mediator must receive the Statement of Issues from each of the party members, at least seven days before the mediation is to occur.

Agreements reached at mediation are legally binding.  The agreement, whether it resolves some, or all of the issues, must be in writing and signed by the parties, or their respective lawyers.  If the mediation solves all of the issues, thus settling the case, the defendant, or their lawyer, must file a notice with the court advising that the parties reached an agreement within 10 days of the agreement being signed.  If a party fails to abide by the agreement, the party wishing to enforce the agreement may make a motion for judgment under the terms of agreement or continue with the legal proceeding.
Even if all of the issues at the mediation do not settle, this is not entirely a bad thing.  Instead, it is often the case that certain issues have been narrowed and parties further understand the other parties case.  Mediations that do not settle continue through the court process.

Ian Hull – Click here for more information on Ian Hull

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