Despite a serious mediation case backlog in Ontario, claimants may nonetheless proceed with legal actions against insurers if mediations are not completed within 60 days of an application for mediation being filed with the Financial Services Commission of Ontario (FSCO), the Ontario Superior Court has ruled.
Section 19.1 of the province's Dispute Resolution Practice Code says "...mediation must be concluded within 60 days of the filing of an application for mediation." This timeline holds firm whether there is a case backlog or not, the court confirmed.
"While some accident victims may choose the court route, others will not, and FSCO can continue to try to get sufficient resources/mediators to comply with the 60-day period," Ontario Superior Court Justice James Sloan wrote in a decision issued on Feb. 8. "Alternatively, FSCO could seek a change in the 60-day time period and/or ask for legislative direction to extend the 60-day period in appropriate circumstances."
FSCO recently announced it is engaging the services of private mediation companies to help clear up the case backlog.
The court's decision rejected the motions of four insurers to stay (stop) the separate legal actions of four accident benefits claimants (Cornie v. Security National, Hurst v. Aviva, Singh v. Aviva and Clarke v. State Farm).
In making their motions for a stay of legal proceedings, the insurers relied in part on letters FSCO sent to the individual claimants. The letters from FSCO mediation manager John Lobo suggested the 60-day clock to complete the claimants' individual mediations had not started to run because mediators had not yet been assigned to the files.
In addition to FSCO's argument above, the four insurers in the matter listed seven other reasons why they thought the 60-day clock had not started to run, even though the claimants had filed their mediation applications with FSCO in accordance with the Statutory Accident Benefits Schedule (SABS). None of these arguments passed muster with the court.
"The insurance companies take the position that the accident victims must simply wait," Sloan wrote. "To entertain this idea could mean that an accident victim might have to wait 100, 300 or 500 days for mediation. I find that submission preposterous."