Regulation 194 Of The Revised Regulations Of Ontario, 1990 Made Under The Courts Of Justice Act

Amended to O. Reg. 243/01
RULE 75.1 MANDATORY MEDIATION-ESTATES, TRUSTS AND
SUBSTITUTE DECISIONS

PURPOSE

75.1.01 This 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. O. Reg. 290/99, s. 2.

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. O. Reg. 290/99, s. 2.

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; ("partie désignée")

"list", when used in reference to a county, means the list maintained for the county under subrule 24.1.08 (1); ("liste")

"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. ("coordonnateur de la médiation") O. Reg. 290/99, s. 2.

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. O. Reg. 290/99, s. 2.

DIRECTIONS FOR CONDUCT OF MEDIATION

Motion for Directions

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. O. Reg. 290/99, s. 2.

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. O. Reg. 290/99, s. 2.

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. O. Reg. 290/99, s. 2.

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). O. Reg. 290/99, s. 2.

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). O. Reg. 290/99, s. 2.

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. O. Reg. 290/99, s. 2.

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. O. Reg. 290/99, s. 2.

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. O. Reg. 290/99, s. 2 .

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. O. Reg. 290/99, s. 2.

REVOCATION

75.1.14 (1) This Rule is revoked on July 3, 2004. O. Reg. 243/01, s. 1.

(2) Despite subsection 3 (2) of Ontario Regulation 290/99, paragraph 2.1 of Form 75.8 is revoked on July 3, 2004. O. Reg. 243/01, s. 1.

(3) Despite subsection 4 (2) of Ontario Regulation 290/99, paragraph 2.1 of Form 75.9 is revoked on July 3, 2004. O. Reg. 243/01, s. 1.

(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. O. Reg. 243/01, s. 1.

(5) Item 1.2 of Part I of Tariff A is revoked on July 3, 2004. O. Reg. 243/01, s. 1.

(6) Item 23.2 of Part II of Tariff A is revoked on July 3, 2004. O. Reg. 243/01, s. 1.

deceased,

late of,

occupation,

who died on.

REQUEST FOR ASSIGNMENT OF MEDIATOR

TO: Mediation co-ordinator for (county)

An order giving directions was made under rule 75.1.05 on (date of order). A copy of the order is attached to this request.

The designated parties have not chosen a mediator under subrule 75.1.06 (1). The 30-day period mentioned in subrule 75.1.07 (1) has expired.

This is a request that you assign a mediator from the list for the county.

(Date)

(Name, address, telephone number and fax number, if any, of lawyer of party filing request, or of party

O. Reg. 290/99, s. 5 (1).

Note: On July 3, 2004, section 6 is revoked. See: O. Reg. 242/01, s. 1.

deceased,

late of,

occupation,

who died on.

NOTICE BY MEDIATOR
TO:

AND TO:

I am the mediator whom the mediation co-ordinator has appointed to conduct the mediation session under Rule 75.1. (Delete this paragraph if mediator was chosen by designated parties under clause 75.1.06 (1) (a) or (c).)

The mediation session will take place on (date), from (time) to (time), at (place).

You are required to attend this mediation session. If you have a lawyer representing you in this proceeding, he or she is also required to attend.

You are required to file a statement of issues (Form 75.1C) by (date) (seven days before the mediation session). A blank copy of the form is attached.

When you attend the mediation session, you should bring with you any documents that you consider of central importance in the proceeding. You should plan to remain throughout the scheduled time. If you need another person's approval before agreeing to a settlement, you should make arrangements before the mediation session to ensure that you have ready telephone access to that person throughout the session, even outside regular business hours.

YOU MAY BE PENALIZED UNDER RULE 75.1.10 IF YOU FAIL TO FILE A STATEMENT OF ISSUES OR FAIL TO ATTEND THE MEDIATION SESSION.

(Date)

(Name, address, telephone number and fax number, if any, of mediator)

O. Reg. 290/99, s. 5 (1).

Note: On July 3, 2004, section 6 is revoked. See: O. Reg. 242/01, s. 1.

deceased,

late of,

occupation,

who died on.

STATEMENT OF ISSUES

(To be provided to mediator and designated parties at least seven days before the mediation session)

1. Factual and legal issues in dispute

The undersigned designated party states that the following factual and legal issues are in dispute and remain to be resolved.

(Issues should be stated briefly and numbered consecutively.)

2. Party's position and interests (what the party hopes to achieve)

(Brief summary.)

3. Attached documents

Attached to this form are the following documents that the designated party considers of central importance in the proceeding: (list)

(Date)

(party's signature)

(Name, address, telephone number and fax number, if any, of lawyer of party filing statement of issues, or of party)

NOTE: Rule 75.1.11 provides as follows:

All communications at a mediation session and the mediator's notes and records shall be deemed to be without prejudice settlement discussions.

O. Reg. 290/99, s. 5 (1).

Note: On July 3, 2004, section 6 is revoked. See: O. Reg. 242/01, s. 1.

deceased,

late of,

occupation,

who died on.

CERTIFICATE OF NON-COMPLIANCE

TO: (court)

I, (name), mediator, certify that this certificate of non-compliance is filed because:

( ) (Identify party(ies)) failed to provide a copy of a statement of issues to the mediator and the other parties (or to the mediator or to party(ies)) .

( ) (Identify party(ies)) failed to attend within the first 30 minutes of a scheduled mediation session.

(Date) (Name, address, telephone number and fax number, if any, of mediator)

O. Reg. 290/99, s. 5 (1).

Note: On July 3, 2004, section 6 is revoked. See: O. Reg. 242/01, s. 1.

1. In this Regulation,

"mandatory mediation session" means the mediation session required by Rule 75.1 of the Rules of Civil Procedure. O. Reg. 291/99, s. 1.

Note: On July 3, 2004, section 6 is revoked. See: O. Reg. 242/01, s. 1.

2. For the purposes of this Regulation, the number of parties is determined according to the following rules:

An estate trustee whom an order under rule 75.1.05 requires to attend a mediation session in person shall be counted as a party only if the court makes an order to that effect.

If the court makes an order under paragraph 1 with respect to two or more estate trustees, they shall be counted as one party, unless the court orders otherwise.

If an order under rule 75.1.05 requires the Children's Lawyer to attend a mediation session in person, he or she shall be counted as a party, unless the court orders otherwise.

If an order under rule 75.1.05 requires the Public Guardian and Trustee to attend a mediation session in person, he or she shall be counted as one party, irrespective of the number of persons represented, unless the court orders otherwise.

Paragraph 4 does not apply if the Public Guardian and Trustee is required to attend in the capacity of estate trustee. O. Reg. 291/99, s. 2.

Note: On July 3, 2004, section 6 is revoked. See: O. Reg. 242/01, s. 1.

3. (1) When a mandatory mediation session is conducted under Rule 75.1 of the Rules of Civil Procedure by a mediator named in a list described in subrule 24.1.08 (1) of those Rules, fees shall be paid in accordance with this Regulation. O. Reg. 291/99, s. 3 (1).

(2) The mediator's fees for the mandatory mediation session cover the following services:

1. One-half hour of preparation time for each party.

2. Up to three hours of actual mediation. O. Reg. 291/99, s. 3 (2).

Note: On July 3, 2004, section 6 is revoked. See: O. Reg. 242/01, s. 1.

4. (1) The mediator's fees for the mandatory mediation session shall not exceed the amount shown in the following Table.

O. Reg. 291/99, s. 4 (1).

(2) Each party is required to pay an equal share of the mediator's fees for the mandatory mediation session, unless the court orders otherwise. O. Reg. 291/99, s. 4 (2).

(3) After the first three hours of actual mediation, the mediation may be continued if the parties and the mediator agree to do so and agree on the mediator's fees or hourly rate for the additional time. O. Reg. 291/99, s. 4 (3).

Note: On July 3, 2004, section 6 is revoked. See: O. Reg. 242/01, s. 1.

5. (1) If the mediator cancels a session under subrule 75.1.08 (4) of the Rules of Civil Procedure because a party fails to comply with subrule 75.1.08 (1 ), that party shall pay any cancellation fees. O. Reg. 291/99, s. 5 (1).

(2) If the mediator cancels a session under subrule 75.1.09 (3) of the Rules of Civil Procedure because a party fails to attend within the first 30 minutes of the session, the party who fails to attend shall pay any cancellation fees. O. Reg. 291/99, s. 5 (2).

(3) Two or more parties who fail to comply or to attend, as the case may be, shall pay the cancellation fees in equal shares. O. Reg. 291/99, s. 5 (3).

(4) The cancellation fees shall not exceed the applicable amount shown in the Table to subsection 4 (1). O. Reg. 291/99, s. 5 (4).

Note: On July 3, 2004, section 6 is revoked. See: O. Reg. 242/01, s. 1.

6. A party's failure to pay a share referred to in subsection 4 (2) or 5 (3) does not increase the share or shares of the other party or parties. O. Reg. 291/99, s. 6.

Note: On July 3, 2004, section 6 is revoked. See: O. Reg. 242/01, s. 1.

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