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    Papers on The Settlement Conference and Written Offers to Settle (8/12)
    Posted: 2010-10-28 08:04:00

    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.

    At some point, the court will canvas the potential of settlement between the parties. In some cases, this discussion might include the judge’s views on the matter; in other cases, the judge may not express any view. If the judge does express a view, it will likely be in terms that indicate that it is really just an “off the cuff” view such as the following:

    Judge: After hearing both of the sides to the case, discussing this with you for the last 20 minutes and based on my experience of having heard many of these types of cases as a trial judge, I think it is useful for you to understand how I think this case might be decided at trial. Now, before I give you that opinion, it is important that you both understand that my views are strictly for discussing in this room. As I mentioned when we began the process, this is an “off the record” discussion and is not binding on the court at trial or on any of the parties. I think though if you know my thinking as a judge on this case, it might give you a better idea of the merits of taking it to trial.

    First, I think we have to remember that the legal principle for a latent defect case requires the plaintiff to show one of two things: either the defendant actually knew about a problem and tried to hide it when they sold the house OR that they knew about a problem that would not have been discovered on a reasonable inspection before purchasing the house.

    In this case, I think the most important hurdle that you face Mr. Ramachandran is to prove that Mr. Chow knew that the window well had a problem. Given Mr. Chow's own testimony and the testimony that he says the neighbour, Sally Conrad, will give, it is difficult for me to understand how you will prove this.

    Moving to the second parts of the two requirements, I am also not sure that Mr. Chow's statement he made to you about “no problems in the basement” can be considered to be any sort of a misrepresentation if that was what he actually believed.

    Finally, I am not sure that your house inspector served you properly. You might want to consider making a claim against him if you believed that he didn't do what you hired him to do but, of course, I am not giving you any legal opinion as to that effect. Certainly it would seem that Mr. Chow has an expert that is prepared to testify that your house inspector's work was not of the standard expected.

    Finally, I want you to both understand that this view is only after I have read your documents and speaking with you during this settlement conference. You should both understand that frequently when a matter is tried, I get a much different view of a case when witnesses are examined and cross-examined in a more formal style. Because of this, you must consider that Mr. Ramachandran might prevail after a trial even though right now I think that he has a case that will be difficult to prove.

    Sometimes comments such as this from a judge will convince parties to agree to the resolution of their case. However, the opposite effect can also happen: parties become more obstinate about their position and are unwilling to agree to any settlement.

    In some situations, settlements might be effected by additional discussions between parties and their representatives, or between the parties without the judge. Such discussions will be facilitated in those courthouses which have additional meeting rooms available for such parties. In addition, depending on the scheduling system being used at that courthouse for settlement conferences, such discussions may be a way for the court to deal with multiple matters at the same time. (However, if cases are set for a specific time rather than on a morning or afternoon list, this is less likely to happen as parties may want to leave once their allotted time is done.)

    Although frequently used in mediations, much rarer in small claims court settlement conferences is the use of caucusing where the judge will meet with only one of the parties and then the other. The rarity is a direct result of the limited time usually available for the conduct of the settlement conference (45 minutes is the usual time scheduled for settlement conferences.) This amount of time does not permit much shuttling between parties to effect a settlement.

    If a settlement can be effected, there are a number of ways that it can be evidenced in the court file. Minutes of Settlement can be prepared by the parties in a formal fashion. No specific form is required although Form 14D can be used. The advantage of using Form 14D, especially with a complicated matter or one involving multiple parties, is that it is much less likely that the people effecting the settlement may forget to include an important term (such as what happens if the settlement funds are not paid.)

    On the other hand, in simpler matters (especially where there is an agreement to dismiss the case with no costs) the judge may simply endorse the record noting the consent of the parties and the disposition of the case. This approach has the benefit of its simplicity and the little amount of time that is necessary to finalize the documentary record.

    A good practice to consider on settlements is that if the settlement involves the payment of money especially over time, it is likely better to write up terms of settlement between the parties and then filed with the court. Simple settlements with dismissals can be endorsed by the court.

    If a settlement is not possible, the court will have to prepare a settlement conference report and then endorse the court record. The normal endorsement is “Not resolved. After 30 days parties may set down for trial.” or something similar. This is an acknowledgement of r. 13.07 which requires the clerk to send a notice reminding parties of this delay.

    A settlement conference report will also be prepared by the court pursuant to r. 13.06 which shall be provided to the trial judge. Although r. 13.06 would seem to require extensive details, in practice the settlement conference reports will provide a relatively terse description of the issues and other matters. There will also be information on this form that assists in the scheduling of trials as well as reminding the parties of their obligations under the rules.

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