MANDATORY MEDIATION ESTATES, TRUSTS AND SUBSITUTE DECISIONS
PURPOSE
75.1.01This Rule establishes a pilot project for mandatory mediation, in the City of Toronto and The Regional Municipality of Ottawa–Carleton, in matters relating to estates, trusts and substitute decisions.
SCOPE
75.1.02(1) This Rule applies to proceedings,
(a) that are commenced in the City of Toronto or The Regional Municipality of Ottawa–Carleton on or after September 1, 1999; and
(b) to which any of 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 an 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.
(2) The fact that an estate or trust is a party to a proceeding, by virtue of an order to continue under rule 11 or otherwise, is not sufficient to bring the proceeding under this Rule.
DEFINITIONS
75.1.03 In this rule,
“designated party” means a party whom an order under rule 75.1.05 requires to attend a mediation session in person;
“list”, when used in reference to a county, means the list maintained for the county under subrule 24.1.08(1);
“mediation co–ordinator”, when used in reference to a county, means the person designated as mediation co–ordinator for the county under rule 24.1.06.
EXEMPTION FROM MEDIATION
75.1.04 The court may make an order, on a party's motion or of its own motion, exempting the proceeding from this rule.
DIRECTIONS FOR CONDUCT OF MEDIATION
Motion for Direction
75.1.05 (1) In a proceeding described in subrule 75.1.02(1), except a contested passing of accounts under rule 74.18, the applicant shall make a motion, in the same way as under rule 75.06, seeking directions for the conduct of the mediation.
(2) The notice of motion shall be served within 30 days after the last day for serving a notice of appearance.
(3) The motion may be combined with a motion under rule 75.06.
Directions
(4) On the hearing of the motion under this rule, the court may direct,
(a) the issues to be mediated;
(b) who has carriage of the mediation and who shall respond;
(c) within what times the mediation session shall take place;
(d) which parties are required to attend the mediation session in person, and how they are to be served;
(e) whether notice is to be given to parties submitting their rights to the court under rule 75.07.1;
(f) how the cost of the mediation is to be apportioned among the designated parties; and
(g) any other matter that may be desirable to facilitate the mediation.
(5) In a contested passing of accounts the court shall, on the hearing date specified in the notice of application, deal with the matter as if subrule (4) applied.
Non–Compliance
(6) If there is non–compliance with a direction given under subrule (4) or (5), the matter shall be referred,
(a) in the City of Toronto, to a judge; and
(b) in The Regional Municipality of Ottawa–Carleton, to a case management master.
MEDIATORS
75.1.06 (1) A mediation under this rule shall be conducted by,
(a) a person chosen from the list for the county by the agreement of the designated parties;
(b) a person assigned from the list by the mediation co–ordinator for the county, at the request of a designated party; or
(c) a person who is not named on the list, if the designated parties consent.
(2) Every person who conducts a mediation under subrule (1), whether named on the list or not, is required to comply with this rule.
CHOICE OF MEDIATOR
75.1.07 (1) Within 30 days after an order giving directions is made under rule 75.1.05, the designated parties shall choose a mediator under subrule 75.1.06(1).
(2) When a mediator has been chosen, the party with carriage of the mediation shall give the mediator a copy of the order giving directions.
(3) If the designated parties have not chosen a mediator by the end of the 30–day period, the party with carriage of the mediation shall immediately file with the mediation co–ordinator for the county a request for the assignment of a mediator (Form 75.1A).
(4) A copy of the order giving directions shall be attached to the request.
(5) On receiving the request, the mediation co–ordinator shall immediately assign a mediator from the list and give the mediator a copy of the order giving directions.
(6) If the party with carriage of the mediation fails to file a request, any designated party may file the request.
(7) The mediator shall, immediately on being chosen or assigned, fix a date for the mediation session and shall, at least 20 days before that date, serve on every designated party a notice (Form 75.1B) stating the place, date and time of the session and advising that attendance is obligatory.
PROCEDURE BEFORE MEDIATION SESSION
Statement of Issues
75.1.08 (1) At least seven days before the mediation session, every designated party shall prepare a statement in Form 75.1C and provide a copy to every other designated party and to the mediator.
(2) The statement shall identify the factual and legal issues in dispute and briefly set out the position and interests of the party making the statement.
(3) The party making the statement shall attach to it any documents that the party considers of central importance in the proceeding.
Non-Compliance
(4) If it is not practical to conduct a mediation session because a designated party fails to comply with subrule (1), the mediator shall cancel the session and immediately file with the court a certificate of non–compliance (Form 75.1D).
ATTENDANCE AT MEDIATION SESSION
Who is Required to Attend
75.1.09 (1) The designated parties, and their lawyers if the designated parties are represented, are required to attend the mediation session.
Authority to Settle
(2) A designated party who requires another person's approval before agreeing to a settlement shall, before the mediation session, arrange to have ready telephone access to the other person throughout the session, whether it takes place during or after regular business hours.
Failure to Attend
(3) If it is not practical to conduct a scheduled mediation session because a designated party fails to attend within the first 30 minutes of the time appointed for the commencement of the session, the mediator shall cancel the session and immediately file with the court a certificate of non–compliance (Form 75.1D).
REMEDY FOR NON–COMPLIANCE
75.1.10(1) When a certificate of non–compliance is filed, the party with carriage of the mediation shall, within 15 days after the date fixed for the mediation session that was cancelled, bring a motion for further directions before,
(a) the judge who made the order under rule 75.1.05;
(b) any other judge who is available; or
(c) in The Regional Municipality of Ottawa–Carleton, a case management master.
(2) The judge or case management master may require the designated parties to appear before him or her and may,
(a) establish a timetable for the proceeding;
(b) strike out any document filed by a designated party;
(c) order a designated party to pay costs; or
(d) make any other order that is just.
CONFIDENTIALITY
75.1.11 All communications at a mediation session and the mediator's notes and records shall be deemed to be without prejudice settlement discussions.
OUTCOME OF MEDIATION
Mediator's Report
75.1.12 (1) Within 10 days after the mediation is concluded, the mediator shall give the mediation co–ordinator for the county and the designated parties a report on the mediation.
(2) The mediation co–ordinator may remove from the list the name of a mediator who does not comply with subrule (1).
Agreement
(3) If there is an agreement resolving some or all of the issues in dispute, it shall be signed by the designated parties or their lawyers.
(4) If the agreement resolves all the issues in dispute, the party with carriage of the mediation shall file a notice to that effect with the court,
(a) in the case of an unconditional agreement, within 10 days after the agreement is signed;
(b) in the case of a conditional agreement, within 10 days after the condition is satisfied.
(5) Despite subrule (4), if rule 7.08 (person under disability, approval of settlement) also applies to the agreement, the notice shall be filed within 10 days after the event mentioned in clause (4)(a) or (b), or within 10 days after the agreement is approved, whichever is later.
Failure to Comply with Signed Agreement
(6) If a party to a signed agreement fails to comply with its terms, any other party to the agreement may,
(a) make a motion to a judge for judgment in the terms of the agreement, and the judge may grant judgment accordingly; or
(b) continue the proceeding as if there had been no agreement.
No Agreement
(7) If no agreement is reached that resolves all the issues in dispute, the matter shall proceed in accordance with any directions given under rule 75.06, or a motion for directions shall be made as soon as possible under that rule.
CONSENT ORDER FOR ADDITIONAL MEDIATION SESSION
75.1.13 (1) With the consent of the designated parties, the court may, at any stage in the proceeding, make an order requiring them to participate in an additional mediation session.
(2) The court may include any necessary directions in the order.
(3) Rules 75.1.07 to 75.1.12 apply in respect of the additional session, with necessary modifications.
REVOCATION
75.1.14 (1) This Rule is revoked on July 3, 2004.
(2) Despite subsection 3(2) of Ontario Regulation 290/99, paragraph 2.1 of Form 75.8 is revoked on July 3, 2004.
(3) Despite subsection 4(2) of Ontario Regulation 290/99, paragraph 2.1 of Form 75.9 is revoked on July 3, 2004.
(4) Despite subsection 5(2) of Ontario Regulation 290/99, Forms 75.1A, 75.1B, 75.1C and 75.1D are revoked on July 3, 2004.
(5) Item 1.2 of Part I of Tariff A is revoked on July 3, 2004.
(6) Item 23.2 of Part II of Tariff A is revoked on July 3, 2004.