Rules of the Supreme Court, 1986

Setting Down Pre-Trial Conferences

39.01. (1) The Registrar shall maintain a Pre-Trial List setting forth, in chronological order each proceeding that has been placed on the Pre-Trial List pursuant to rule 40.05(2) or 40.06(3) or pursuant to order.

(2) The Registrar shall publish a Monthly List in the Registry, not later than the first day of each month, setting the dates and times when pre-trial conferences are scheduled for cases during the next calendar month.

(3) Within fifteen days of receipt of notice of a date and time for a pre-trial conference,

(a) the parties may in writing jointly request three alternate conference dates or times whereupon the Registrar shall assign one of such alternate dates or times, if available, or if none is available or the parties have not jointly filed a request in writing to drop the proceeding down on the Pre-Trial List, replace the case at the bottom of the Pre-Trial List,

(b) any party may apply to a judge to postpone a scheduled conference and to fix another date.

(4) Where a pre-trial conference date has not been postponed or rescheduled pursuant to rule 39.01(3), the pre-trial conference date shall become fixed.

(5) Once a proceeding has been placed on the Pre-Trial List, the parties may at any time or times prior to the date of a pre-trial conference becoming fixed, jointly file a request in writing to drop the proceeding further down on the Pre-Trial List.

165/94 s3; 240/94; 149/04 s1

Conference Procedures

39.02. (1) A judge who presides at a pre-trial conference shall not, except with the consent of the parties, preside at the trial.

(2) Unless otherwise directed by the Court, counsel who attend a pre-trial conference shall be counsel who propose to conduct the trial or who are otherwise fully authorized, briefed and prepared to discuss, deal with and give binding undertakings with respect to all matters properly arising during the conference.

(3) At least two days prior to the scheduled date for a pre-trial conference, each party shall deliver to the pre-trial conference judge a brief containing a summary of the facts, issues and law and shall deliver on the same date a copy to each other party.

(4) Notwithstanding rule 46.07, at least four days prior to the scheduled date of a pre-trial conference, the parties shall exchange copies of all expert opinions and reports then in their possession or under their control and upon which they propose or intend to rely at trial and shall produce those opinions and reports to the pre-trial conference judge at the conference. Such an exchange of opinions and reports shall be deemed to have been made on a without prejudice basis and without waiver of any claim to privilege with respect to non-production of them pursuant to the rules or at trial.

(5) The participants in a pre-trial conference shall come prepared and authorized to discuss and determine, where applicable,

(a) the simplification of the issues;

(b) the amendment and refiling of briefs for the benefit of the trial judge;

(d) the possibility of obtaining admissions of fact or of documents that will avoid unnecessary proof;

(e) the resolution of the quantum of damages, if any, or any other matter by making it the subject of a reference;

(f) limiting the number of expert witnesses;

(g) arrangements for expert witnesses to meet, on a without prejudice basis, to determine those matters on which they agree and to identify those matters on which they do not agree;

(h) special arrangements and procedures for the conduct of lengthy or complex trials;

(i ) the appropriateness of conducting a settlement conference or mini-trial;

(j) the appropriateness of conducting a summary trial or an expedited trial under rule 17A and, if so, the appropriateness of making any of the orders contemplated by that rule;

(k) the appropriateness of assigning a fixed date for trial;

(l) the appropriateness of conducting trial by judge and jury;

(m) any other matter that may aid in the disposition of the proceeding.

(6) Discussions at a pre-trial conference are without prejudice and shall not be referred to in subsequent applications, or at the trial except as disclosed in any order made under rule 39.04.

(7) The judge conducting a pre-trial conference shall not disclose to the trial judge or to any other judge what positions were taken or what admissions or concessions were made for the purpose of discussing settlement during the conference and shall not include any references to such matters in any written report of the conference subsequently prepared by him or her.

(8) A judge may, if requested by one or more of the parties, direct that a pre-trial conference be held wholly or partly by telephone or teleconference, with the actual costs of such telephone call or teleconference to be paid by the party or parties requesting the same.

165/94 s3; 240/94; 9/00 s3

Consequences of Failure to Attend or Lack of Preparedness

39.03. Where counsel or a party who is required to attend personally fails to attend a pre-trial conference or where counsel who attends is not prepared or authorized to deal with the matters contemplated by rule 39.02(4), the judge

(a) shall, where the failure is a failure of all counsel or unrepresented parties involved, order that the proceeding be removed from the Pre-Trial List without prejudice to the parties to file another Certificate of Readiness pursuant to rule 40.05;

(b) may , where the failure is not a failure of all counsel or unrepresented parties involved,

(i ) make any order as to costs that is deemed just; and

(ii) fix a date for a further pre-trial conference, or order that the matter be dropped down on the Pre-Trial List to a place determined to be suitable by the judge.

165/94 s3; 240/94

Disposition of Pre-Trial Conference

39.04. At or following a pre-trial conference the judge shall

(a) order that the parties attend a settlement conference or a mini-trial where the judge is of the view that such a conference or mini-trial is desirable or where the parties so request;

(b) order that the proceeding be dealt with by way of summary trial or expedited trial where the judge is of the view that the conditions necessary for the application of rule 17A apply;

(c) order that the proceeding be removed from the Pre-Trial List where it is determined by the judge that the case is not ready for trial, without prejudice to the parties to file another Certificate of Readiness pursuant to rule 40.05; or

(d) unless a settlement conference, mini-trial, summary trial or expedited trial has been ordered, order that the proceeding be set down for trial in accordance with rule 40.07;

and in any event

(e) may make an order reciting the results of the conference and giving such directions as the Court deems advisable, and such order shall control the subsequent course of the proceeding, unless modified by subsequent order or at trial to prevent injustice.

165/94 s3

Mini-Trials and Settlement Conferences

39.05. (1) Where the parties are ordered to attend a mini-trial, the parties shall attend before a judge who shall, in camera and without hearing witnesses, but after considering such documents, other materials and submissions as the judge deems appropriate give a non-binding opinion on the probable outcome of a trial of the proceeding.

(2) Where the parties are ordered to attend a settlement conference, they shall attend before a judge who shall, in camera and without hearing witnesses, explore all possibilities of settlement of the issues that are outstanding, and a judge may at or before the settlement conference order that relevant documents, materials, briefs and legal authorities be made available to the settlement conference judge to assist in that judge’s preparation for the conduct of the conference.

(3) A judge who has heard a mini-trial or who has attended at a settlement conference shall not preside at the trial unless all parties consent.

(4) Unless the parties consent or the court otherwise orders, materials delivered to a judge pursuant to rule 39.05(1) or 39.05(2) shall not be placed in the court file of the proceeding to which they relate and shall not be disclosed to any trial judge who may thereafter try the case.

(5) The judge conducting a mini-trial or settlement conference shall note in the court file, the date or dates upon which the mini-trial or settlement conference was held.

(6) Upon completion of the mini-trial or settlement conference, the judge shall return to the parties or their counsel the materials previously delivered by them, and shall note the court file accordingly.

(7) The judge conducting a mini-trial or a settlement conference shall not disclose to the trial judge or to any other person what positions were taken or what admissions concessions or opinions were made or given during the mini-trial or conference, and shall not include reference to such matters in any written report subsequently filed as to the holding of such mini-trial or conference.

(8) Except by order of the court no reference to the positions taken or admissions or concessions made by the parties, or to the opinion of the judge, at a mini-trial, settlement conference or other settlement-related proceeding shall be contained in any brief or other document filed in a proceeding and shall not be referred to or commented on at the trial of that proceeding. Any opinion of a judge given in writing following a mini-trial shall be given to the parties but shall not form part of the record of the proceeding or be placed in the court file.

165/94 s3; 9/00 s3

Settlement Following Conference or Mini-Trial

39.06. If a proceeding is settled at or following a pre-trial conference, settlement conference or mini-trial or at any other time prior to trial, the parties shall file a Memorandum of Settlement containing

(a) a statement that the matter has been settled;

(b) a request to discontinue the proceeding;

(d) agreements , if any, as to costs.

165/94 s3

General Powers

39.07. (1) Notwithstanding any other rule, a judge hearing or dealing with any application or other matter in a proceeding, or the trial judge or hearing judge, as the case may be, may, at any time, on his or her own initiative or at the request of a party, order that the parties attend at and participate in a pre-trial conference, a settlement conference or a mini-trial upon such terms and under such circumstances as the judge deems necessary or desirable.

(2) Where a trial judge orders a conference during a trial or hearing, the holding of such a conference before the trial judge does not of itself disqualify him or her from presiding at the trial or hearing.

165/94 s3

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