After a party has been served with the Plaintiff’s Claim and they serve and file their Defence, the matter gets placed into the queue by the Court to schedule a mandatory Settlement Conference.
The purposes of the Settlement Conference are:
1. To settle the matter;
2. Resolve some of the issues/narrow the issues for Trial; and
3. Orders for the disclosure of all evidence which a party will rely upon at Trial but not have yet been served.
All documents you plan to rely upon at Trial should have been attached to your Plaintiff’s Claim, but if they weren’t, they must be served within 14 days of the Settlement Conference, together with your List of Proposed Witnesses.
The List of Proposed Witnesses provides the Court and other side with the contact information for who you intend to call as a witness. The List of Proposed Witnesses is not set in stone, and can be updated as the matter progresses.
Settlement Conferences are presided over by a Deputy Judge and held through Zoom. The only parties present are the Plaintiff(s), the Defendant(s) and their representatives (if any). Witnesses are not permitted to attend at the Settlement Conference.
A Settlement Conference is a casual meeting, and anything said during the Settlement Conference remains confidential and cannot be used at Trial. Witnesses are also not permitted to know what transpired during the Settlement Conference.
If the party is a corporation, someone within the organization who has knowledge of the matter and authority to settle on behalf of the corporation can attend on its behalf.
The Deputy Judge’s role in a Settlement Conference is to act as an intermediary between the Plaintiff(s) and Defendant(s) for the purposes mentioned above.
The Plaintiff(s) will be given the opportunity to present their case in a general manner, and the Defendant(s) are then provided with the same opportunity.
The Deputy Judge will then provide their opinion on the strengths and weaknesses of the Plaintiff’s Claim and Defence and provide guidance on the parties’ positions. The Deputy Judge will also attempt to facilitate a settlement between the parties if there is an appetite to do so.
If the parties do not come to a resolution, the Deputy Judge will endorse the Record that the matter is to be scheduled for Trial. Usually, it is the Plaintiff who pays the Trial fee, and once the Request to Clerk is filed with the Court and the fee paid, the matter goes into the queue to be scheduled for a Trial date.
At the end of the Settlement Conference, the Deputy Judge will usually ask the parties:
1. How many witnesses each party plans to call;
2. How long they anticipate the Trial will take; and
3. Have all documents been served.
If one party makes a request for certain disclosure, the Deputy Judge will make an order for production of those documents. If nothing specific is requested, the Deputy Judge will usually order that “all documents to be relied upon at Trial are to be served within 30 days of Trial,” which is in accordance with the Rules.
Settlement discussions can continue up to and including the Trial date if the parties wish to do so. There is no timeline on settlement.
Settling on your own terms does have its benefits, which include:
1. You avoid spending a day or more in Court;
2. The costs of going to Trial (your time, legal representatives, etc.);
3. Potentially losing, and having to pay more, paying the other sides costs, etc.;
4. The stress of going to Trial is lifted; and
5. You control the narrative, rather than leaving the control at the hands of the Court.
Parties must attend the Settlement Conference in good faith to attempt to resolve the issues, however, you are entitled to your day in Court and do not have to settle if you do not want to.
Murray Brown, Licensed Paralegal