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    Papers on The Settlement Conference and Written Offers to Settle (2/12)
    Posted: 2010-09-16 08:05:25

    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.

    Powers at Settlement Conferences

    The court may make recommendations to the parties relating to a number of matters in r. 13.04. However, r. 13.03(4) makes it clear that these recommendations and anything else that was discussed at the settlement conference are not to be disclosed to anyone else until the action has been finally dealt with.

    In addition to the power to make recommendations, a judge conducting the settlement conference may make the orders described in r. 13.05. These orders include a number of orders that could finally determine the matters before the court (for example, r. 13.05(2)(a)(iii) staying the action; (iv) amending or striking out a claim or defence) or (v) staying or dismissing a claim.)

    An important question is: how far can a judge presiding over a settlement conference go? An older case of the Divisional Court (Essa v. Guergis (1993) 15 OR(3d) 573) suggests, as a general rule, that “pre-trial judges should not make significant, contentious rulings at pre-trial hearings in the absence of clear notice and opportunity to meet and respond to the ruling sought. In the M case, the application to remove solicitors should not have been dealt with at pre-trial on the basis of the information available.”

    However, that was a case of a pre-trial in superior court. Even to this day, Rule 50 of the Rules of Civil Procedure provide much more limited powers for superior court pre-trials. In addition, some meaning must be given to section 25 of the Courts of Justice Act which provides that “the Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience” (my emphasis.) Based on this, my view is that a deputy judge may make a final order disposing of an action at a settlement conference on their own motion.

    The two most likely areas for this to occur are the striking of a claim for the failure to disclose a cause of action and the dismissal of a claim against an individual defendant where the facts make it clear that the correct defendant was a corporation connected with the individual.

    There are examples of deputy judges in small claims court who exercise powers of final disposition even without a request or a motion to do so from the parties. (See, for example, Roskam v. Rogers Cable, OJ No. 2049 (Div Crt) where the Divisional Court makes it clear that a deputy judge does have power at a settlement conference to dismiss a matter if it does not disclose a claim known to law. However Jacobs v. Ottawa Police Services Board OJ No. 657 suggests the opposite and provides that the only orders that may be made are relating to procedural, not substantive matters. A decision of a Small Claims Court notes that the two decisions are in direct conflict and suggests that it would be likelier to follow the Roskam decision. See Bank of Montreal v. McConnell OJ No. 3464 at para. 13.) The remedy against such a decision would be an appeal to the Divisional Court provided the amount in dispute was in excess of $500 (section 31 Courts of Justice Act).

    The balance of this paper will deal with how parties should prepare for the settlement conference and how it will be conducted. The next chapter deals with formal offers to settle that should follow on the settlement conference.

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