In those cases where FSCO does not receive this form from the parties, by default, the application for mediation will remain in queue for assignment to a mediator.

On November 29, 2012, the Ontario Court of Appeal issued decisions on appeals of several lower court decisions regarding when mediation should be considered failed. These included a decision on the matter of Hurst v. Aviva Insurance Company (Cornie v. Security National Insurance Co. et al) and a decision on the matter of Younis v. State Farm. It should be noted that an arbitration appeal decision on failed mediation came to a similar conclusion as the Ontario Court of Appeal.

Impact on Parties:

Parties who filed applications for mediation with FSCO more than 60 days ago should submit a form to FSCO indicating that they either jointly agree to extend the time for mediation or that either party wishes to receive a failed Report of Mediator.

When FSCO receives this form:

• For those parties jointly requesting to extend time for the completion of the mediation process the joint request will remain in queue and will be booked for a mediation meeting.
• Where a party is requesting to fail mediation, the request will be processed in the order received. For expediency, FSCO will be issuing these 60 day failed Reports of Mediator by email to the claimant’s representative and insurer, with a hard copy sent by mail to the claimant.