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    Papers on The Settlement Conference and Written Offers to Settle (1/12)
    Posted: 2010-09-09 08:05:46


    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.

    Introduction

    The settlement conference is probably the most important procedure that exists in the small claims court repertoire. Yet, because there is no similar process shown on the TV courts, the conference is relatively unknown to the public at large. In terms of time effectiveness, the settlement conference provides a very effective means of disposing of disputed matters.

    Over time, the nature of the settlement conference has changed in the small claims court system. Even the name has changed in order to emphasize the purpose of the meeting. Originally, this meeting was called a Pre-Trial Conference. As its name suggested, the meeting was used in some cases (not all contested matters resulted in a pre-trial) in order to prepare for trial. The numbers of witnesses and the length of time they would take was canvassed and the information then used by the clerk to schedule trials in a more time-efficient fashion. Settlements were an ancillary objective of the process although some judges and referees were adept at securing settlements in a high proportion of pre-tried matters.

    On July 1, 2006, the rules were changed to refer to the meeting as a Settlement Conference changing the emphasis of getting ready for trial to an emphasis on trying to settle the matter without a trial.

    Applicable Rules

    Rule 13 of the Rules of the Small Claims Court outlines the requirements for settlement conferences.

    Every defended action which does not have an admission of liability (r. 13.01(4)) will have a settlement conference (r. 13.01(1)) at a time to be fixed by the clerk of the court (r. 13.01(2)). Normally the clerk will schedule the conference to take place within 90 days of the date that the first defence was filed (r. 13.01(3)).

    Settlement conferences may be heard by either a deputy judge (r. 13.05(1)) or a referee (r. 21.01(1)(b) and 13.05(3) of the small claims court.) The actual person to be used will depend on the availability of referees in the specific jurisdiction. The most significant difference between the two types of officers is that a referee may only recommend certain types of orders to a judge (r. 13.05(3)). (From this point on, we will refer to settlement conferences as being conducted by a judge or the court with the understanding that this can include a referee.)

    A judge who presided over a settlement conference will not be the judge who will preside at the trial (r 13.08). Although prior to July 1, 2006, the parties could consent to the use of the judge who presided over a pre-trial conference for their trial, this provision no longer exists. Accordingly, any attempt to consent will likely lead to the invalidity of any resulting judgement.

    The purposes of the settlement conference are set out at r.13.03(1) and include:

    • resolving or narrowing the issues in the action

    • expediting the disposition of the action

    • encouraging settlement

    • assisting the parties for preparation for trial; and

    • providing full disclosure of facts and evidence


    Notices of the settlement conference are sent by the clerk to the parties or, if they have indicated they are represented, to their representatives. At the same time that the clerk sends the notice of the settlement conference, the clerk will also send blank lists of proposed witnesses to the parties.

    The list of proposed witnesses (Form 13A) is required to be exchanged with all other parties and filed with the court at least 14 days before the date of the settlement conference (r. 13.03(2)(b)). At the same time, each party is required to serve on every other party and file with the court “a copy of any document to be relied on at the trial, including an expert report, not attached to the party's claim or defence.” (r. 13.03(2)(a))



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