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    Papers on The Settlement Conference and Written Offers to Settle (3/12)
    Posted: 2010-09-23 08:00:02

    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.


    As can be appreciated from the description of the rules above, the intention is that parties should be ready to go to trial at the time the settlement conference begins. In practice, this happens in surprisingly few cases. Many poorly prepared parties and their representatives use the settlement conference almost as a means to inform themselves as to what the case is about. Not only is this very poor practice, such parties may run afoul of the rule described next and have a costs award made against them.

    If a party is not properly prepared, r. 13.02(7) provides that the court may award costs against them. Although no general statistics are available, it is my experience that this costs power is only invoked in situations where there is almost a total frustration of the settlement conference objectives. However, as the general practice improves, it is likely that such costs orders may be made more frequently in the future.

    Parties who are well-prepared should, in the face of another party who has done little to prepare, suggest to the court that the provisions of r. 13.02(7) should be considered to impose a costs sanction on the ill-prepared party. Costs in a settlement conference are limited by r. 13.10 to $100 unless the court indicates otherwise because of special circumstances. In addition, section 29 of the Courts of Justice Act limits a costs award to 15% of the amount in dispute “unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding”. This means that if a costs award will run up against either the $100 or 15% limits, the court should also endorse the additional circumstances justifying the award.

    How should one prepare for a settlement conference?

    A lot will depend when the preparation is being done. Generally, it is useful to wait to see the other side's documents to determine the case that has to be made.

    For plaintiffs, there are two aspects that must be considered in preparing the case. The first of these is what is the legal basis of the defendant's liability? Courts are instruments of the law and need to base themselves on a legal principle in order to find in favour of a plaintiff. Even though in the small claims court, judges have an obligation to try and determine what legal principles are involved with respect to the facts presented by the parties, it is very useful if the plaintiff can actually describe the principle by the legal names.

    Sources on the internet can be used to help determine the applicable legal principle. If such sources are being used, ensure that they are based on Ontario law. Also try to find a description of the principle which includes what elements need to be proved by facts. Using a notepad, sketch out those elements on the left side of the page. Then on the right side of the page, begin by listing each of the facts from your case and what other evidence you will present.

    Evidence can be any of: oral testimony of the plaintiff or other witnesses; documentary evidence that will be identified by the plaintiff or the witnesses; any expert reports which express an opinion relating to the case; and photographs or similar evidence that will be identified by the plaintiff or the witnesses.

    When the page listing the required elements and the evidence to be used is ready, you will have some idea of the witnesses you will need, the documents that need to be put together and anything else that still has to be prepared.

    For each witness, a Will Say statement should be prepared after actually having interviewed the witness. This document is described below and will be a useful means to prepare the witness prior to trial if required.

    The second issue that a plaintiff must be concerned about is the proof of actual damages. Again, the foregoing process as for liability can be used to sketch the witnesses and documents required.

    From a defendant's perspective, in preparation, the following questions need to be answered:

    • Is there a dispute relating to the basis of legal liability? If so, what is it? Has the plaintiff proved each element of their case?

    • Does the defendant disagree with the amounts being claimed? What would be reasonable charges for the damages 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?

    A defendant should determine what the legal principle is that underlies the plaintiff's case. Then, for each element that the plaintiff needs to prove, the defendant can map out the  evidence that will be presented to refute it. Because the burden of proof is initially on the plaintiff, if they are unable to prove an element, the defendant needs to ensure that they don't inadvertently provide the information needed to prove the plaintiff's case. This generally occurs when the defendant has not properly prepared. In some cases because the defendant was not aware that they should stop talking, they have provided the plaintiff the information needed to prove an element of the plaintiff's case.

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