Endorsement of SPIES J.: — This is a motor vehicle action.
The amount in issue is not large but I expect it is important to
the defendant insurer. The issue is whether the insurer is
required to pay the full cost of a recent mediation or only half of
the cost. There is no dispute that s. 258.6(1) of the Insurance Act,
R.S.O. 1990, c. I.8 provides that where a plaintiff requests a mediation, the insurer shall pay the full cost. However, there is also no
dispute that as a Toronto action, a mediation is mandatory pursuant to rule 24.1 of the Rules of Civil Procedure, R.R.O. 1990,
Reg. 194 and that the costs of the mediator are to be shared
equally pursuant to s. 4(2) of O. Reg. 451/98 made under the
Administration of Justice Act, R.S.O. 1990, c. A.6.
 The plaintiff argues that there is a conflict in the two statutes and that the Insurance Act prevails by virtue of rule 1.02,
which provides that the Rules do not apply if a statute provides
for a different procedure.
 In this case the plaintiff requested a mediation pursuant to
the Insurance Act in a letter to counsel for the insurer and referred
to that a second time in an e-mail to counsel before the mediation
was scheduled. The insurer did not object or respond that the
mediation was not going to proceed under the Insurance Act.
 In my view, there is a conflict between the Insurance Act
and the Rules. Although one could argue that there is not — if
one assumes there could be two mediations — one mandatory and
one requested, the reality is that the mediation that proceeded in
this case will count as the mandatory mediation. The conflict
between the two statutes is with respect to the responsibility for
 Mr. Sazant argued that the plaintiff’s position will result in
all plaintiffs proceeding in this fashion and that may be true, but
that is only the case for motor vehicle actions where the
Insurance Act applies.
 The clear intention of the Insurance Act was to allow
a plaintiff to request a mediation to be paid for by the insurer in
the hope that the action might be resolved. The policy reasons
seem clear — I do not think it is meant to apply only where
a plaintiff is impecunious as suggested by Mr. Sazant. Clearly, the
legislature assumed that in these circumstances the insurer is in
a better position to absorb the costs and pay for the costs of the
 The insurer also argued that the motion is frivolous and
that this issue could have been dealt with at the end of the action
as it was in Lakew v. Munro,  O.J. No. 6274, 2014 ONSC
7316 (S.C.J.), at para. 82.