A settlement conference provides both parties in a legal dispute with the opportunity to sit with a Provincial court judge to explore ways to settle their case without going to trial. Rule 7 is all about settlement conferences
Settlement conferences are mandatory for most cases started by a notice of claim. You will not have a settlement conference, and will go straight to trial, if you case involves a motor vehicle accident in which liability is in dispute and a judge is asked to determine who is at fault and/or how much money to award the claimant, if any.
Why have a settlement conference?
There are two main purposes for a settlement conference:
- to settle the case and
- to help the parties better prepare for trial if there is no settlement.
Court staff set a time for the settlement conference, which usually takes place at a meeting room in the courthouse and is closed to the outside public. About two-thirds of all Small Claims cases are resolved at a settlement conference, without going to trial.
Who hears the case and how long does it take?
A judge hears the case in a 30-minute conference, but it may last up to an hour. The conference is usually held in a meeting room in the court, not a court room. The judge is likely to wear business attire, rather than robes.
To facilitate frank discussion, none of the conversations at the settlement conference can be used at trial. The settlement conference judge will not be your trial judge. The settlement conference judge can give you a non-binding assessment of your chances at trial. This assessment may be useful in deciding to settle at the settlement conference – or shortly after, before the case moves forward to trial.
What happens at a settlement conference?
At the settlement conference, the parties will sit at a table with a judge. The judge will say a few words and ask both parties to give brief summaries of their cases. The judge may then lead both the claimant and defendant in a discussion on what, if anything, they can agree on. This is done in a way that promotes agreement and the judge may suggest ways of resolving the dispute without going to trial.
In most Small Claims Court cases, the claimant and the defendant present their own case. This means that they both have to prepare for the settlement conference. In fact, according to Rule 7(4) and Rule Rule 7(6) both parties must have the authority to settle the case and they must be prepared – failure to do so may result in financial penalties and/or delays.
Both parties must bring all documents that they would use to prove their case as if the matter was going to trial. Neither side can bring witnesses to the conference, but each side should be prepared to summarize evidence that witnesses would provide. See below for more information on preparing for a settlement conference.
The conference provides an opportunity for discussion that is “without prejudice and off the record”. No record of the proceedings is kept except for the Settlement Conference Record, which is a written document signed by the judge and all the parties at the conclusion of the settlement conference.
At the conference, the judge can do any of the following:
- Mediate any disputed issues and decide on any issues that do not require evidence.
- Order one or both parties to produce documents.
- Decide on any issues that do not require evidence
- Dismiss a party’s claim, counterclaim, reply, or third party notice if it is determined to be without reasonable grounds.
- Set a trial date, and discuss evidence requirements and trial procedures if a trial is necessary.
- Make any other order required for the just, speedy, and inexpensive resolution of the claim
- If both parties agree about something, the judge can make an order that details the terms of the agreement.
- If the claim is regarding property damage, the judge can order the claimant to allow a person chosen by the defendant to examine the damaged property
What if I am suing the defendant for a personal injury?
There are special rules are personal injury cases found at Rule 7(9-11). You are required to file a Certificate of Readiness (Form 7) no later than 6 months after you have filed a notice of claim. A settlement conference will not be scheduled until you file the Form 7 Certificate, which must include a medical report evaluating your injury and records of expenses or losses incurred or expected.
You can make an application to a registrar requesting a 6 month extension to file the Form 7 Certificate. This application may be made either before or after the initial deadline has expired. If you are the claimant, be aware that the respondent can apply to a judge and ask that you attend a medical doctor for an examination at your expense.
How should I prepare for a settlement conference?
Being well prepared for your settlement conference is very important. It is a good idea to think about a solution that will work for both of you. Compromise might be necessary to save time and money. You can use the Mediation Worksheet to help you have clear idea about your best and worst case scenarios in the dispute. In addition, use the Settlement Conference Checklist to be sure you have taken all necessary steps to be prepared.
To learn more about the Settlement Conference, read the Ministry’s procedural guide called Getting Ready for Court. It includes information about the Settlement Conference, Trial Conference and Trial. It also has information about the special rules you must follow if your claims involves a personal injury. Another great resource is The Law Centre Factsheet: The Settlement Conference.
What happens if we settle at the settlement conference?
If the settlement conference goes well, the parties agree to resolve their case without going to trial. In these circumstances, a judge would make an order that reflects the agreed-upon decision and that would be the end of the case.
What happens if we don't settle?
If you are not able to settle your case, the settlement conference judge may begin to discuss the type of evidence each party would need to prove their case. The judge can make orders for the parties to exchange copies of documents or other evidence, and make other procedural orders.
Based on your case and the number of witnesses that will appear, the judge will estimate the amount of court time needed for your trial. If the time estimate is one day or longer (a half day in some courthouses) you will need to attend a Trial Conference. If your trial will be shorter, you may be given a trial date before leaving the courthouse, or you may receive a notice of your trial date in the mail.
How long do I have to make an offer to settle to the other party?
Offers to settle can be made within 30 days of the settlement conference, or longer if permitted by a judge, by either party. After the offer is accepted it can be filed with the registry and then it becomes a payment order and the trial is cancelled. See the Offer to Settle form here.
What happens if I need to change the date of the settlement conference?
The first step is to ask the other party to agree in writing to the change. If he or she agrees, you can file a consent order, with his or her written consent, at the registry.
If you are unable to reach an agreement with the other party, you may file an Application to the Registrar (Form 16) at least seven days before the date set for settlement conference. The application must explain the reason you want to change the date and that you asked the other party to consent. If the application is granted by the registrar, a new date will be set for your settlement conference.
What happens if one of the parties does not attend the settlement conference?
If you are the claimant, your claim may be dismissed. If you are the defendant, a payment order may be made against you.
For more information see here.