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Personal Injury

Court clarifies motor vehicle accident mediation rules

A court ruling which clarifies who pays for mediation in motor vehicle accident claims is a “small victory” for plaintiffs, Ottawa personal injury lawyer Joseph Doris tells AdvocateDaily.com.

In its judgment, the Ontario Superior Court of Justice settled a conflict between the Insurance Act and the Rules of Civil Procedure, says Doris, associate with Howard Yegendorf & Associates LLP.

He explains that in Toronto, Ottawa and Windsor, mandatory mediation is in place for most civil actions, including motor vehicle accident cases “to encourage parties to settle early in the litigation process to save time, money and court resources."

According to the judgment, the Insurance Act “provides that where a plaintiff requests a mediation, the insurer shall pay the full cost."

However, court heard that because the case in question involved a Toronto plaintiff, the mandatory mediation rules and regulations under the Rules of Civil Procedure and the Administration of Justice Act should be applied, which state that the costs of the mediator be shared between the parties. 

The court ruled the Insurance Act prevails, stating 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. Clearly, the legislature assumed that in these circumstances the insurer is in a better position to absorb the costs and pay for the mediation.”

Doris says the expense of mediation “is not a big issue if the case settles because the insurer will pay those costs as part of the settlement.” 

“However, if the case does not settle at mediation, the parties generally split the mediation costs and move on to the next step in the litigation. That’s usually how it worked in the past,” he says.

Doris says hiring a mediator can be expensive, “and having injured victims absorb half of the mediation costs is a big disbursement for our clients.” 

“The laws and regulations related to motor vehicle litigation are constantly being changed and amended in favour of insurers so this court decision is small victory for plaintiffs,” he says.

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