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The tactical delays in Ontario car accident cases: Thomson v. Portelance, 2018 ONSC 1278

The wheels of justice turn slowly. Why is that?

Do you have all day to listen to the rantings of a personal injury lawyer?

Likely not.

The reality is that some of the delay can be blamed on the inherent nature of modern day personal injury litigation. It’s complex. It’s combative. It’s document heavy; and getting documents produced from the police, hospitals, treatment facilities or a doctor is not the most expeditious process. There are also significant privacy concerns as well which take time to deal with.

Other times you can blame the Courts. Most urban ones are slow without adequate resources to meet demand. Don’t believe Brian Goldfinger? Have you visited your local Courthouse lately?

Some times there simply aren’t enough Judges to hear cases. It’s true and it happens more that you would expect.

The focus of this Toronto Injury Lawyer Blog Post will be tactical delays by insurance lawyers to slow down the progression of a car accident case in Ontario.

After a serious car accident, it’s in the interest of the insurance company to delay delay delay the claim. The maxim “justice delayed is justice denied” rings true to this day.

Memories fade over time. Documents get lost. Limitation periods lapse denying claimants their day in Court. Witnesses go missing, or their recollection of events isn’t as pure as it once was. People have a hard time caring about an accident which took place many years ago. Add to that the curveball of life….accidents happen, and happen again. So, if you were involved in a car accident in 2015; and then a subsequent accident 3 years later in 2018; the defence lawyer for the 2015 accident will blame your injuries on the 2018 car accident. From a tactical perspective, it makes sense for insurance defence lawyers to play those odds of life which have a habit of derailing personal injury cases.

Enter the recent decision of Thomson v. Portelance, 2018 ONSC 1278.

In this motor vehicle tort claim the defendants refuse to schedule a mediation until discoveries were concluded. Scheduling a mediation can take many months or in some cases well over a year to do. The more in demand the mediator, the longer the wait for a mediation date. Add to that the availability of all of the lawyers, clients and insurance adjusters; scheduling mediation can be as difficult as herding cats. The same principal applies to scheduling examinations for discovery.

In Toronto, Ottawa and Windsor, mediation is MANDATORY. The Plaintiff cannot get a trial date, without a mediation having taken place and a Certificate of Mediator being filed with the Court by the mediator. The reality is that a case can be set at a standstill if one party refuses to mediate.

In this case, the plaintiff wished to schedule the mediation prior to discoveries so that the action could be set down for trial as soon as possible in order to advance the litigation expeditiously.

In order to resolve this issue, the plaintiff properly requested a chambers appointment (case conference) pursuant to rule 50.13 of the Rules of Civil Procedure, R.R.O.1990, Reg. 194.

The defendants’ position was found to be inconsistent with s. 258.6(1) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”) and s. 3 of Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96. Further, the Defendant failed to consider the requirement that an action in the Toronto Region cannot be set down for trial until the mediation has taken place.Goldfinger-logo-icon-300x300

Pursuant to paragraph 57 of the Toronto Consolidated Practice Direction, effective May 1, 2017, an action cannot be set down for trial until the mediation session has taken place.

Unique to the motor vehicle tort claim compensation system in Ontario is the requirement under s. 258.6(1) of the Act that both the plaintiff and the defendants’ insurer shall, on the request of either of them, participate in the mediation of the claim in accordance with the procedures prescribed by the regulations.

Section 3(1) of O. Reg. 461/96 provides that if a request for mediation is made under subsection 258.6(1) of the Act, the plaintiff and defendant’s insurer shall, within 10 days after the request is made, agree on and appoint a person to be the mediator. The problem with simply agreeing to a mediator, is that you can get anybody. And when I mean anybody, I mean that anybody can mediate the case. The mediator can have ZERO experience in personal injury law. It happens.

The Honourable Justice Firestone ordered a timetable which scheduled the mediation; which was scheduled against the Defendants’ wishes prior to examinations for discovery having taken place. What this did was effectively advance the Plaintiff’s claim forward, to ensure that tactical delays by the Defendant insurer; and regular delays of waiting in queue for discovery and mediation dates were expedited.

This is a fantastic case for innocent accident victims in Ontario. But, it’s sad that it shows the tone of modern day personal injury litigation in Ontario where the Plaintiff Personal Injury Lawyer had to schedule a Case Conference before a Judge in order to move the claim forward.

Regrettably, this case will likely only apply for motor vehicle accident claims in Ontario because of Justice Firestone’s reference to the SABS and to the Insurance Act. That means that in dog bite cases, slip and fall cases, assault cases, long term disability cases and other personal injury cases in Toronto, Windsor or Ottawa where mediation is mandatory, they will likely have to apply for a Case Conference or to the Mandatory Mediation Office to push matters forward in the event that Defence Counsel uses delay tactics to slow down a claim.

Also keep in mind that just because a mediation takes place, doesn’t necessarily mean that the case will settle, or that the Defendant is coming with enough money to satisfy a Plaintiff’s claim. In addition, the wait from the conclusion of mediation to Pre-Trial, and then to Trial isn’t very short either. In many cases, that wait between a failed mediation and Pre-Trial can be well over a year. That wait time all depends on the complexity of the case, the amount of Court days required for trial, along with the wait list of other cases for Court time. The more cases on the trial list, the greater the delay to have your day in Court.

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