In Laporte v. Ridgewell, Master Lou Anne M. Pope ordered the defendants to pay costs where the claims representative of the defendants’ insurer balked at travelling from outside Windsor for a mediation. The defendants had proposed to have the claims representative participate in the mediation by telephone, but had not obtained a court order, allowing this procedure to be followed.
According to correspondence sent to the plaintiffs’ solicitor by counsel for the defence, the reason that the latter’s insurer client did not want to appear in person at the mediation was the insurer’s intention “to maintain the position at mediation that [the plaintiff’s] claim for non-pecuniary general damages does not meet the verbal threshold and that [the plaintiff] is not disabled from her pre-accident employment as a result of any injuries sustained in the motor vehicle accident at issue”.
Master Pope noted that this was a situation “unique to Windsor”:
As an aside, this is a situation unique to Windsor where the insurance representatives typically have to travel from out of town to attend mediation sessions and settlement conferences in Windsor. In Toronto, where civil cases were subject to case management and mandatory mediation until Rule 78 came into force, and Ottawa, like Windsor, where the civil cases are case managed and subject to mandatory mediation, insurance companies have offices in those cities and do not have to travel out of town to attend mediation sessions and settlement conferences.
(In fact, relatively few insurance companies now have offices in Ottawa. In most cases handled by our firm, claims representatives must travel to Ottawa from Toronto.)
In this case, counsel for the plaintiff insisted that the insurer’s representative attend in person, but counsel for the defendant refused.
Master Pope reviewed the provisions of Rule 24.1.11(1.1), which applies to mandatory mediations in case managed actions and says:
If an insurer may be liable to satisfy all or part of a judgment in the action or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment in the action, a representative of the insurer is also required to attend the mediation session, unless the court orders otherwise.
The Master thought this provision rather clear: “I interpret the phrase ‘to attend the mediation session’ with the literal meaning of the word ‘attend’ to mean ‘attend in person’.” As a result, she considered that the insurer in this case had “demonstrated a blatant disregard for the requirements of subrule 24.1.11(1.1)”.
Master Pope indicated that the court routinely grants orders, authorizing insurers to attend by telephone, but noted that no order had been sought in this case. As a result, she ordered the insurer to pay the mediator’s costs of the abortive mediation and $1,050.00 to the plaintiffs for the cost of preparing for the mediation and attending a case conference. She also ordered that the insurer attend a mediation session held on or before March 16, 2007.
This decision makes it clear that if the parties cannot resolve the issue of the insurer’s attendance, counsel for the insurer would be well-advised to obtain an order under Rule 24.2.11(1.1), permitting attendance by telephone.