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    Papers on The Settlement Conference and Written Offers to Settle (7/12)
    Posted: 2010-10-21 08:05:28

    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.

    After the opening statement, there are a number of different ways that the settlement conference might proceed.

    One of these is for the court to then turn to the plaintiff and ask them to make a statement summarizing their claim. The court will then ask the defendant to do the same. In case this approach is used, parties should be prepared to provide a brief summary of their case and the evidence that will help them prove that case.

    For plaintiffs, the statement should highlight the legal basis of the defendant's liability and the amount the plaintiff believes is owing. There should also be reference to the types of evidence that will be used to prove these points.

    A typical statement (which uses the same facts as that which underlie the Will Say statement in Schedule I) of a plaintiff representing themselves might be:

    Plaintiff: My name is Sumeet Ramachandran and I am the plaintiff in this case. I am suing Mr. Chow for damages which my wife and I have suffered as a result of Mr. Chow hiding information from me when he sold us his house in Pleasant Grove about a leaky basement.

    I will testify first and I will establish the facts related to the agreement to purchase the house. As part of a house inspection, I will testify that I asked Mr. Chow directly and he told me that he never had any trouble with the basement. After moving into the house on July 2, 2009, we had a large rain storm on August 4, 2009 and we had water infiltrate the basement through a window well.

    I will have Frank of Frank's Basement Repairs testify as well. He will tell the court that the flooding was as a result of leaves that had been allowed to accumulate in the window well and blocked the proper drainage.

    Finally, I will testify and provide evidence that my wife and I lost $2,000 of textbooks and a box of irreplaceable pictures in the flood. I will also provide Frank's estimate that it will cost $5,000 to fix the window well.

    For defendants, the statement needs to address the following points (we have seen these before above in terms of what the defendant needs to prepare):

    • Is there a dispute relating to the basis of legal liability?

    • Does the defendant disagree with the amounts being claimed?

    • Is there agreement with what is owed but the only real issue is the defendant's inability to pay quickly?

    • Is there agreement that there is some liability but not for the full amount claimed?

    As with the plaintiff's statement, it is also useful to indicate which evidence will be used to support the points: testimony of the defendant or witnesses; documents; expert's reports or photographs.

    Again, using the sample case from Schedule I, a defendant who represents themselves might use the following statement:

    Defendant: My name is Larry Chow. I acknowledge that I sold my house to the Ramachandrans but I deny that I should have any liability to them. I understand that the applicable law in this case is known as a “latent defect”. I also understand that the law of latent defects is that I would be liable as the vendor of the house if I knew that a leak was going to happen and this could not be discovered by the Ramachandrans on a reasonable inspection.

    I also understand that I would be liable if I purposely lied to the Ramachandrans about the house or misrepresented the condition of the house knowing what I was saying was false.

    I will testify that during the period of time that I owned the house (from 2006 until 2009) that I never had any basement flooding. I will also have my next door neighbour for this house, Sally Conrad, testify that she knew me the whole time that I owned this house and that there was never a leak.

    I have a report from Joe's House Inspection that indicates in their opinion, a house inspector who had properly examined the basement window well should have discovered the problem with the leaves blocking the drains. Because of this, I believe that the real liability should be on the house inspector that the Ramachandrans hired.

    Finally, I believe, without prejudice to my position on liability, that the amounts being claimed are too high. To begin with, I think that the value of the textbooks is almost worthless. I will testify that I have been to many garage sales and seen textbooks such as are being claimed for being offered for pennies.

    I also believe that the correct amount for the repair to the window well should be $1,500. To support this, I will provide an estimate of Joe's House Inspection that shows this amount for the repair.

    Based on the plaintiff and defendant's statements, the court will then be able to engage a discussion on the various points.

    Another way that the court might proceed is by asking the parties to confirm the court's understanding of the case. After all, in preparing for the settlement conference, the judge will already have read the plainitiff's claim and the defence and, if those were properly drafted with appropriate documents attached, should have a good idea of what the case is about.

    The judge, for example, might say the following in our sample case:

    Judge: Mr. Ramachandran, I understand that you have sued Mr. Chow on the basis of not having provided you full disclosure of facts relating to the house that you bought from him. Is that correct?

    The judge could then continue:

    Judge: And I understand, Mr. Chow, that you deny any liability on the basis that if Mr. Ramachandran's house inspector had done their job properly, they would have discovered the problem themselves?

    In this type of 'inquisitorial style' the judge gets both sides to both confirm the judge's understanding of the case and to have the parties confirm some of the key facts. In some cases, the judge will have a good idea in which direction the case is going and get the parties to agree to the facts which will help easily resolve the case. For example, in the case we have been dealing with, one direction the judge may go is to ask the following questions:

    Judge: Mr. Ramachandran, do you know if the house inspector that you hired to inspect Mr. Chow's home that you bought actually examined the window well where the rain came in?

    If he didn't examine that window well, do you think that was reasonable to have missed?

    Many other types of styles can be used. However, one approach that judges will try to avoid is to ask the parties at the outset:

    So tell me, what is this case about?

    This type of questioning is usually avoided as it may give the parties the impression that the judge has not prepared for the settlement conference in any meaningful way. However, in some cases, the plaintiff's claim and defence may be so obscure that the judge, after reading the documents, really doesn't have a clear idea as to what the case is about. In this situation, the judge may use the following:

    Judge: Even though I have read your claim form and your defence , I have difficulty in understanding exactly what happened here and what legal principles are involved. It seems Mr. Ramachandran that you are suggesting that Mr. Chow misrepresented the condition of the house he sold you; is that correct?

    As can be seen, the experience of the judge can be brought to bear to clear up even the most obscure document.

    Whichever style is used, in fairly short order the judge will have elicited the key facts and will have identified one or more legal issues. Not only is this one of the objectives of the settlement conference but the judge will also usually create a note on the settlement conference to assist the trial judge in preparing and hearing the case if the same is required. By identifying the key issues and the facts that will be used to support those issues, the judge will identifying strengths and weaknesses of each party.

    The judge will also identify any special evidentiary issues and help the parties understand their obligations to each other and the court with respect to the evidence. In our example, there may be a challenge with the testimony of experts. The judge might address the parties as possible:

    Judge: Mr. Chow, I understand that you have a report and estimate from Joe's House Inspection with his opinion that the Ramachandrans house inspector did not do the job that would normally be expected. I wanted to confirm that a copy of that report and estimate have already been provided to the court and Mr. Ramachandran? I ask, because I don't seem to be able to find a copy of those documents in the court file.

    I also want you to understand that it is up to the trial judge to decide if they will consider Joe to be an expert. Although usually the judge is the only person to have opinions on the evidence presented, when there is a technical matter that the trial judge is not skilled in, the parties may qualify people as experts who will then be able to provide their opinions (rather than just facts) as to what might or should have been.

    In order to qualify as an expert, the trial judge will have to be satisfied that the person has the educational background and work experience to be able to give those opinions. If you intend for Joe to testify as an expert here, you will need to show this. Have you discussed this with Joe and are you ready to provide that sort of background for him?

    Other similar evidentiary problems will likely be canvassed by the court at some point. These issues might also be endorsed on the settlement conference report.

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