This decision reveals that the court has two ways to penalize an Ontario automobile insurer who rejects a Plaintiff’s request to mediate an automobile related claim. The first is a cost sanction under section 258.6 of the Insurance Act, R.S.O. 1990, c.I.8, (the “Act”) , and the second is under Rule 57.01(1)(e) if the court is satisfied that the failure to attend the requested mediation unnecessarily prolonged the mediation.
As more fully outlined in my article entitled “A Rare Ontario Statutory Right to Mediation,” under the Act an Ontario automobile insurer can be compelled to a private mediation by a party who sustained damages from the use or operation of a motor vehicle in Ontario, and indeed, if the insurer refuses to participate in such a mediation once requested, cost sanctions can follow.
This case helps explain the two ways in which heightened costs can be awarded, and reminds us that the language of the Act “is not a mere suggestion or recommendation to insurers and plaintiffs that they should participate in mediation at an early stage in a claim for damages following a motor vehicle accident. Where there is a failure to follow this legislative direction, the court must determine the appropriate remedial costs penalty in the circumstances: Keam v. Caddey, 2010 ONCA 565, 103 OR (3d) 626; Williston v. Hamilton (Police Service), 2013 ONCA 296, 115 OR (3d) 144.”
Estate of Diane Tsialtas v. Munroe, 2022 ONSC 1207
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1207/2022onsc1207.html