ORDERS GIVING DIRECTIONS - PART V
Mediation
Pursuant to Rule 75.1.02 of the Rules of Civil Procedure, mediation is mandatory in proceedings commenced in the City of Toronto, the City of Ottawa and the County of Essex, when the following applies,
(i) rule 74.18 (application to pass accounts), if the application is contested,
(ii) rule 75.01 (formal proof of testamentary instrument), 75.03 (objection to issuing certificate of appointment), 75.05 (return of certificate) or 75.08 (claims against the estate),
(iii) Part V of the Succession Law Reform Act, (iv) the Substitute Decisions Act, 1992, (v) the Absentees Act, the Charities Accounting Act, the Estates Act, the Trustee Act or the Variation of Trusts Act,
(vi) subrule 14.05(3), if the matters at issue relate to an estate or trust, or
(vii) subsection 5(2) of the Family Law Act.
If the proceeding is subject to mandatory mediation as a result of the above, an Order Giving Directions will typically include a provision regarding the conduct of the mediation including the issues to be mediated. In considering the timing of the mediation, allowance for any necessary document and/or information exhanges (and/or conduct of examination), if necessary, should be factored in. While it is possible to exempt the requirement of a mandatory mediation on motion (Rule 75.1.04), the Court may be very reluctant to grant such an Order. I
n areas where mediation is not mandatory, where the parties wish to proceed to a mediation in an orderly fashion to save time and expense, the parties may negotiate an Order regarding the mediation of the issues in the proceeding. The parties may specify who the mediator is to be or provide in the Order that they will agree upon a mediator. In order to avoid unnecessary confusion, debate and/or cost to the parties, provision may also be made for the payment of the costs of the mediator in the Order (e.g., out of the estate at first instance).
The Hearing of Issues
An Order Giving Directions might address the nature of the hearing of the issues and the timing of the hearing. For example, the issue could be ordered to be tried, without a jury, at a certain location, at a date to be fixed by the Registrar, and that the records shall consist of the Order Giving Directions (and the pleadings arising therefrom, if applicable) and any other Order for Directions made by the Court. On the other hand, a party may specifically wish to leave out of the Order Giving Directions the manner in which the issues are to be heard, as a party may wish to proceed by way of summary judgment or otherwise. While the ability to proceed by way of summary judgment motion is arguably largely settled as a result of a decision by Mr. Justice Cullity in Ettore Estate, Re, one might unnecessarily complicate matters by initially inlcuding a provision that stipulates that the matters be heard by way of trial. The parties might decide to leave the manner in which the hearing is to be conducted until after mediation and/or the necessary discovery stage has been completed as the parties may be in a better position at that time to clarify the issues that may remain in dispute and decide upon the nature of the hearing.
Timing of Orders Giving Directions
While this week's blogs have focused on Orders Giving Directions, Orders Giving Directions can be pursued at any time during the proceeding, if appropriate. Parties may decide to proceed with a very simply and straightforward Order Giving Directions at first instance,and then as a result of information and documentation obtained, decided that a further Order Giving Directions needs to be sought, negotiated or argued in Court. With this in mind, an Order Giving Directions may include a provision that the parties are granted leave to move for further directions as may appear adviseable or necessary.
Have a great day, Craig.
