Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether mandatory mediation under Rule 24.1 should proceed in person or by videoconference, in the context of a wrongful dismissal and misrepresentation claim under Rule 76 (simplified procedure).
• Interpretation of Rule 1.08(8) regarding how disagreements over mode of attendance (in person vs. virtual) at mediation should be resolved, and whether this should be done by case conference rather than a formal motion supported by affidavits.
• Consideration of whether any party bears an evidentiary onus to justify departure from a preferred mode of attendance, given the post-pandemic normalization of virtual court processes and mediations.
• Assessment of affidavit evidence purporting to show that in-person mediation would be more effective, including the plaintiff’s desire to “confront” the defendant, versus the absence of objective evidence that in-person proceedings increase the likelihood of settlement compared with videoconference.
• Evaluation of proportionality, cost-effectiveness, and efficiency under Rule 76 in choosing the mediation format, especially where parties and insurers are located in different cities (Ottawa and Toronto).
• Practice-management concern that parties are misusing motions, instead of non-adversarial case conferences, to resolve routine procedural issues such as the mode of mediation.

Background and factual context

The case of Spiegelman v. Avantia Medical Imaging and Restorative Health, Stittsville Imaging Centre Inc. and Dr. Gregory Davies arises from a wrongful dismissal and misrepresentation claim brought by the plaintiff, Janice Spiegelman, against her former employer and related defendants. The proceeding is commenced under Rule 76 of the Ontario Rules of Civil Procedure, which establishes a simplified procedure intended to promote cost-effective and efficient resolution of smaller, less complex civil disputes. Within that framework, the parties are required to participate in mandatory mediation pursuant to Rule 24.1, a process designed to encourage early, negotiated settlement with the assistance of a neutral mediator. The dispute that reached the Superior Court of Justice was not about liability or damages but about how the mediation itself should be conducted: in person or by videoconference. The plaintiff, who lives in the Ottawa area, wanted an in-person mediation. She emphasized her desire to confront the defendant physician and “look him in the eye” to explain the impact of the termination and the manner in which she said she had been treated. The defendants, also based in Ottawa, were represented by counsel in Toronto, as was their insurer or claims examiner. They favoured a virtual mediation, consistent with current practice in many civil cases following the Covid-19 pandemic. The underlying wrongful dismissal and misrepresentation issues, including the alleged misstatements and the circumstances of the termination, are not explored in detail in this particular decision. Instead, the endorsement focuses on how mediation should be conducted in a modern, post-pandemic court system, and whether there is any legal presumption in favour of in-person or virtual attendance.

Procedural history and issues before the court

Under Rule 24.1.04, this action is subject to mandatory mediation. Rule 1.08 governs the mode of attendance for certain steps in a proceeding, including mediations, and contemplates that parties will first attempt to agree on whether appearances will be in person, by telephone, or by videoconference. Where disagreement arises about the mode of attendance, Rule 1.08(8) stipulates that the issue is to be dealt with at a case conference, a relatively informal, non-adversarial proceeding where a judge or associate judge can give directions expeditiously and at minimal cost. In this matter, a case conference had already been held before an Associate Justice. However, the parties insisted that the dispute over mediation format required affidavit evidence and a formal motion, and consequently the issue came before C. MacLeod RSJ on a civil motions list. The narrow question before the court was whether mediation in this Rule 76 wrongful dismissal and misrepresentation action should proceed in person, as requested by the plaintiff, or by videoconference (or potentially hybrid), as the defendants preferred. Embedded in that question were several subsidiary issues: whether any presumption still exists in favour of in-person attendance at mediation; whether any party bears the burden of justifying a particular mode of attendance; what weight, if any, should be given to the plaintiff’s subjective wish to confront the defendant; and how proportionality and efficiency under the simplified procedure should influence the court’s direction.

Evolution of the law on mode of attendance

Before 2020, the prevailing assumption in Ontario civil practice was that court attendances, examinations for discovery, and mediations would be conducted in person. Departures from that norm generally required either the agreement of the parties or a court order. In the mediation context under Rule 24.1, earlier authorities had framed remote participation—most often by telephone, occasionally by videoconference—as an “exemption” from the usual requirement of physical presence, with the requesting party bearing the onus to show that remote attendance was in the interests of justice. The endorsement notes that in “what now seems like ancient times,” participation by videoconference would have seemed unusual; the more typical request was for a party or insurer to attend by phone. Nevertheless, even in that earlier environment, courts had been willing to authorize virtual participation where justified by the circumstances—for example, allowing an elderly plaintiff in Romania, with health issues and language barriers, to take part in mediation via videoconference. The pandemic, and the judiciary’s forced and rapid adoption of virtual hearings, dramatically reshaped these assumptions. Videoconferences became mainstream, and the Ontario courts issued “presumptive guidelines” indicating that many routine civil appearances, including motions and pre-trials, would be conducted virtually. Those practice directions, however, do not specifically address mediation, leaving some uncertainty as to whether any formal presumption applies when parties disagree about how to attend a Rule 24.1 mediation.

The parties’ positions and the evidence tendered

The plaintiff argued that Rule 1.08 should be read as creating a functional presumption in favour of the mode of attendance first called for by the party initiating the step—in this case, her request for an in-person mediation. On that theory, the defendants would bear the onus of showing why the mediation should not be conducted in person. She filed an affidavit emphasizing her desire for face-to-face interaction with the defendant physician and describing the emotional significance of confronting him directly. The defendants countered that there was no such presumption in the current rules and that virtual mediation was now a common, effective, and efficient option in civil proceedings. They adduced evidence that the chosen mediator routinely offers virtual mediations. However, there was no affidavit from the mediator, or from any other mediator, comparing the efficacy of virtual and in-person mediations, nor was there detailed, empirical evidence on settlement rates by format. The court ultimately found the affidavit material unhelpful in resolving the procedural issue. Much of the evidence focused on the merits of the wrongful dismissal and misrepresentation claims rather than on the mediation process itself. More importantly, there was no objective basis in the record to conclude that settlement would be more probable in one format over another. While the plaintiff’s wish to confront the defendant was acknowledged as genuine, the judge held that there was no compelling evidence that this objective could not be adequately achieved in a videoconference setting, where participants can still see and speak directly to each other. The evidence did not meaningfully engage with broader mediation process design, such as the ability to involve senior claims personnel or consult with witnesses and co-counsel more easily in a virtual environment.

Judicial analysis of Rule 1.08 and mediation practice

C. MacLeod RSJ emphasized that Rule 1.08 is constructed to encourage cooperation and swift, low-cost resolution of disputes about mode of attendance. The rule explicitly promotes non-adversarial discussion, and, failing agreement, referral to a case conference at which the court can give directions. In that context, the judge endorsed the view expressed by Myers J. in Worsoff v. MTCC 1168 that decisions under Rule 1.08 should be made “quickly and with little expense” so as not to create another layer of process that bogs down civil litigation, and that it is not strictly helpful to speak in terms of formal burdens of proof at a case conference about mode of attendance. The endorsement underscores that the rules are not drafted in a way that encourages parties to bring motions, with affidavits and formal argument, on this type of procedural question. Instead, case conferences are the contemplated and preferred mechanism. Turning to the broader policy environment, the judge noted that what was once “common wisdom”—that in-person mediations and judicial pre-trials were more effective—has been called into question by experience with virtual proceedings. Many, and perhaps most, mediations now occur online. Virtual processes can offer distinct advantages: reduced travel costs, easier scheduling, and the ability to involve senior decision-makers, insurers, or key witnesses who might not otherwise attend if everyone had to gather in one physical location. In this particular case, the fact that the defendants’ counsel and insurer were based in Toronto while the parties resided in the Ottawa area was noted, but the court held that travel expense alone was not determinative. At the same time, in a Rule 76 simplified procedure action where proportionality, cost-effectiveness and efficiency are meant to be paramount, it was significant that nothing in the evidence indicated that the mode of mediation would materially affect the prospects of resolution. The judge declined to declare that Rule 76 mediations should be presumptively virtual or to minimize the importance of carefully choosing the mode of mediation in other cases. The decision is deliberately narrow, recognizing that in some cases particular vulnerabilities, logistics, or dynamics might justify an in-person or hybrid format. However, on the specific record before the court, there was no principled reason to insist on an in-person mediation.

Outcome of the motion and implications

In the result, the court directed that the mediation in Spiegelman v. Avantia Medical Imaging and Restorative Health, Stittsville Imaging Centre Inc. and Dr. Gregory Davies proceed by videoconference, with the option of a hybrid format if agreed by the parties and the mediator. The judge expressed the view that it should not have been necessary to bring a formal motion at all; the parties ought to have accepted the Associate Justice’s decision at the case conference or otherwise resolved the procedural issue without resort to further litigation steps. Given the absence of prior jurisprudence squarely addressing this post-pandemic issue and the limited utility of the affidavit evidence, the court ordered that there be no costs of the motion. Thus, on this procedural dispute, the defendants were substantively successful in securing a virtual or hybrid mediation format, but they did not obtain any monetary award or costs. The underlying wrongful dismissal and misrepresentation claims remain undecided on their merits in this endorsement, and there is no discussion of policy wording, contractual clauses, or specific damages calculations in the record provided. Accordingly, as far as this decision is concerned, the successful party on the motion is the defence, but the total amount ordered in their favour is $0, and any damages, cost awards, or monetary relief arising from the ultimate resolution of the wrongful dismissal and misrepresentation claims cannot be determined from this decision alone.