Factual concerns to be raised with parties to lawsuit

Williston v. Hamilton (Police Service), 2013 ONCA 296 provides:

[6]          The appellant submits that the trial judge erred in ruling that s. 258.6 did not apply because the respondents were not insurers either as named defendants or by way of subrogation. The ruling was made without either party having raised the issue. Further, had the issue been raised, the appellant would have provided ample evidence that s. 258.6(2) had been engaged in the circumstances of this case. In support of that submission, the appellant has tendered fresh evidence showing that the respondents were insured; that the respondents had confirmed to the appellant that there was coverage and advised of its limits; and that the appellant had made requests for mediation engaging the obligations outlined in s. 258.6(1).

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[12]       Before ruling as he did, the trial judge ought to have raised his concern with the parties and given them an opportunity to address the issue of whether the insurer's obligation to mediate had been engaged. Had the trial judge done so, the appellant would no doubt have sought permission to file relevant material. Because the trial judge did not provide this opportunity, it is appropriate, in my view, for the appellant to file on appeal the fresh evidence touching on this issue.