With Amendments to the Rules, Ontario moves towards online Mediations as the “New Normal”

I want to start by wishing everyone reading this a Happy New Year and only the best for a safe and healthy 2021. We’re off to an inauspicious start, but I remain hopeful for the days ahead.

Since the middle of March 2020, I have only done online mediations. I have made myself available for in-person mediations, but in the end, these matters proceed online. I can count on one hand the number of times the mediation forum has been in dispute i.e. one party preferring in-person vs. online or vice versa. While further changes to Ontario’s lockdown rules, and the general trajectory of daily cases, typically move the parties towards agreement to move matters online, I question what will happen once (fingers crossed) we go back to some semblance of normalcy. 

Recent amendments to the Rules of Civil Procedure may provide a glimpse into where we are headed on this front. On January 1, 2021, the following changes came into effect for Rule 1.08:

 METHOD OF ATTENDANCE AT HEARINGS, ETC.

1.08 (1) A party seeking a hearing or other step in a proceeding that permits or requires the attendance of parties shall, in the forms or other documents required under these rules to be filed in advance of the hearing or step, specify by which of the following methods the party proposes that the parties attend at the hearing or step:

1.  In person.

2.  By telephone conference.

3.  By video conference. O. Reg. 689/20, s. 1.

Objection

(4) A party who wishes to oppose the proposed method of attendance shall deliver a notice of objection in Form 1A before the earlier of,

(a)  10 days after the document specifying the proposed method of attendance was served on the party; and

(b)  seven days before the hearing or step. O. Reg. 689/20, s. 1.

Objection to be Dealt with at Case Conference

(5) If a notice of objection is delivered, the court shall direct that a case conference be held to deal with the objection. O. Reg. 689/20, s. 1.

Method to be Determined by Order

(6) At the case conference referred to in subrule (5), the court shall make an order directing the method of attendance at the hearing or step and, in doing so, the court shall consider,

(a)  the availability of telephone conference or video conference facilities;

(b)  the general principle that evidence and argument should be presented orally in open court;

(c)  the importance of the evidence to the determination of the issues in the case;

(d)  the effect of a telephone conference or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(e)  the importance in the circumstances of the case of observing the demeanour of a witness;

(f)  whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(g)  the balance of convenience between any party wishing the telephone conference or video conference and any party or parties opposing; and

(h)  any other relevant matter. O. Reg. 689/20, s. 1.

Mandatory Mediations, Oral Examinations for Discovery

(8) This rule applies with the following modifications to mandatory mediations (Rules 24.1 and 75.1) and oral examinations for discovery (Rule 31):

1.  One of the parties shall propose the method of attendance by notice to the other parties.

2.  If a party delivers a notice of objection, one of the parties shall request a case conference for the court to make an order under subrule (6).

3.  The factors in clauses (6) (b) to (e) do not apply.

4.  If the court makes an order under subrule (6) directing a telephone conference or video conference, the court shall,

i.  direct a party to make the necessary arrangements and to give notice of those arrangements to the other parties, and

ii.  make any other direction respecting the telephone conference or video conference, including any related requirements or procedures, that the court considers appropriate in the circumstances.

5.  If no notice of objection is filed and the parties are to proceed by telephone conference or video conference, one of the parties shall make the necessary arrangements and give notice of those arrangements to the other parties. O. Reg. 689/20, s. 1.

The general takeaway from these Amendments is that if one party proposes that a mediation proceed via videoconference, and the other party objects, the objecting party must deliver a notice of objection (via Form 1A) within the timeframe set out in the Rules. If objected to, and the parties still can’t agree, then the matter will proceed to a case conference where the Court will determine the merits of the objection based on the criteria set out in Rule 1.08(6)(a)(f)(g) and (h). 

I’ve yet to see any decisions considering these Amendments, but practically speaking these Amendments will likely continue the shift towards online mediation even when COVID cases sharply decline as they codify online mediations as an acceptable forum subject to the objection of one party. It remains to be seen how often parties will object to a mediation proceeding via video conference, but the practical implications of filing a notice, preparing arguments then potentially being subject to cost consequences will likely serve as a chilling effect to objections where one party has requested the matter proceed via videoconference, except in the most extreme scenarios.

Online mediations are far from perfect, but they have allowed the administration of justice to proceed during a global pandemic. The above Amendments are a recognition that even when the daily case counts drop, and seeing each other in-person once again becomes viable, online mediations may be here to stay.