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    Papers on The Settlement Conference and Written Offers to Settle (5/12)
    Posted: 2010-10-07 08:03:57

    By Marcel D. Mongeon

    The following is a passage from an essay by Marcel D. Mongeon, Deputy Judge, Small Claims Court of Ontario. We’ve divided this paper into a series of 12 posts.

    Adjournment Requests

    The most common reason for parties to want to contact each other prior to a settlement conference is to request an adjournment – another date because the party or their representative cannot attend on the date originally scheduled. Because clerks will usually schedule settlement conferences without any information about availability, this will happen especially for busy representatives.

    There is no specific provision in the rules that provide for adjournments of settlement conferences. Although it is preferable to have the consent of both parties (and to provide the court with a list of alternate dates) to request an adjournment, most court offices will also deal with adjournment requests that do not have a consent on their face provided they are requested in a timely manner. However, it is always preferable to have attempted to communicate with the other party or, if applicable, their representative.

    A problem that the court will have is lost time if the adjournment request is made at the last minute. Although there is currently no sanction that the court has for parties that fax their adjournment request on the morning of the scheduled settlement conference, it is bad practice. Adjournment requests should be made as early as possible to allow the possibility of allocating the court time for another matter. In addition, any adjournment request should be accompanied by the available dates of the parties.

    In some cases – especially after a number of previous adjournments or with self-represented parties – consent may not be forthcoming for an adjournment request. The court will normally grant one or two adjournments of a settlement conference for any reasonable cause. However, if a party believes that another party is abusing this, the solution is to only consent to an adjournment if it is marked 'peremptory' against the party requesting it.

    'Peremptory' is a code word used by the court to indicate that a party has used up any leeway that the court is prepared to grant. It effectively means that no further adjournment requests will be considered from a person against whom the matter has been marked as being peremptory. Ultimately, it is up to every judge to decide how they will rule in a specific case; there is no provision in the rules for how a noting of 'peremptory' must be handled and, accordingly, it is possible that a subsequent judge might still grant a further adjournment. This, though, should not be counted on.

    A matter may be marked as being peremptory as against one or both parties. The possible sanction for failure to comply is likely to be that the court will deny any future adjournment requests treating any absence as a failure to attend.

    Telephone or Video Conferences

    Rules 1.07 and 13.02(1)(b) provide that where facilities exist a party may request and the court may order a telephone or video conference to be conducted for the settlement conference. Unfortunately, not all court offices have the necessary facilities. It is important to determine by telephone which courts these are in advance.

    If such a request is granted, a party attending remotely will have to ensure that their document brief has been delivered to the court and the other party in sufficient time (at least 14 days before the settlement conference according to r. 13.03(2)). In addition, because telephone equipment can provide poor quality audio when in multiparty or speakerphone mode, parties attending remotely should ensure that they minimize any sources of noise and use equipment properly to ensure that they are well heard and that they can hear the parties at the court.

    Non Attendances

    The bane of settlement conferences is a non-attending party. Having only one party show up on a settlement conference is a regular occurrence and a waste of the court's time. Clearly, the party who is not in attendance is at fault although the fault might be explained by not having received the court's notice of the settlement conference. Since many of these are likely to be sent out of the court in a week and many of them may have faulty addresses as provided by the parties on their claim or defence, a certain percentage are not delivered.

    As suggested above, a diligent party should contact the other party a short time after receiving the notice of settlement conference. If there was an addressing mistake, this can be dealt with quickly and before the court has to lose time.

    In the case where there is a non attendance at a settlement conference, the rules are silent as to what should specifically happen. The normal practice is to request the court to endorse the record as follows for a defaulting defendant:

    The defendant did not appear at the settlement conference by Costs of $100 (r. 13.10) are awarded to the plaintiff payable by the defendant to be paid on or before 15 days from today failing which the defence shall be struck and the plaintiff will be allowed to prove its claim.

    A defaulting plaintiff would have the following endorsement:

    The plaintiff did not appear at the settlement conference by Costs of $100 (r. 13.10) are awarded to the defendant payable by the plaintiff to be paid on or before 15 days from today failing which the claim shall be dismissed.

    The non-defaulting party is then advised that the clerk will send a copy of the endorsement out and that if they do not receive the costs awarded by the date indicated that they contact the court and ask that the defaulting party be noted in further default of the costs award and that the matter proceed as indicated in the endorsement.

    Even though the court will send out a copy of this endorsement, a prudent party will realize that it would be good practice to attempt to contact the defaulting party yet again to advise them of their default and the costs consequences. In this fashion, the defaulting party would have a weaker case if, in the future, they were looking to set aside their default.

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