In Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288, Justice Mew stated that, even when a mediation is not mandatory, the court can take into account a party's refusal to mediate in determining costs.
Following a seven day jury trial, the plaintiff recovered significantly more than the defendant's last settlement offer, which Justice Mew described as little more than a nuisance offer.
The trial was heard in Belleville, Ontario, which does not have a mandatory mediation program. The defendant and its insurer were not willing to engage in a mediation, despite the plaintiff's request to do so.
Justice Mew indicated that, in England and Wales, an unreasonable refusal to mediate can trigger cost consequences. However, he noted there is also the view that plaintiffs should not be able to use the threat of a cost sanction to extract a settlement from defendants even when a claim is without merit.
Justice Mew stated that the reasons given by the jury showed that neither side had a strong position on liability. As a result, declining an offer to mediate was unreasonable.
Although Justice Mew indicated that defendants do not have to settle, he stated that, if reasonable opportunities to mediate are spurned, that can be a relevant factor when fixing costs. He suggested that hardball positions taken by a party should not be condoned.
The cost penalty to the defendant for refusing to mediate was approximately $20,000.
This case demonstrates that, even when a mediation is not mandatory, parties should give careful consideration before refusing to mediate. The courts strongly encourage settlement and do not look favourably upon unreasonable settlement positions.
That being said, plaintiffs who have weak cases should not request a mediation as a tactical ploy to attract cost sanctions.
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