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RULE 39B
SETTLEMENT CONFERENCES

Analysis



Purpose of settlement conferences

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39B.01.  (1) The purpose of a settlement conference is to allow the parties to attend before a judge who shall, in private and without hearing witnesses, explore all possibilities of settlement of the issues that are outstanding.

             (2)  The parties, or in the absence of a party, the persons representing the party in attendance at a settlement conference, shall have authority to settle the dispute.

111/10 s10; 98/17 s2

How to get a matter on the Settlement Conference List

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39B.02.  (1) Matters shall be placed on the Settlement Conference List

             (a)  by order of a judge either following a pre-trial conference or otherwise; or

             (b)  subject to paragraph (2), on request of the parties after the pleadings have closed where the parties agree that it is likely the matter will be resolved with the assistance of a judge.

             (2)  Requests under clause (1)(b) shall be made by filing a Request for Settlement Conference in Form 39B.02A signed by all parties or their counsel. 

             (3)  Where the judge at a settlement conference determines that it was not appropriate for the parties to have requested a settlement conference under clause (1)(b), the judge may make an order as to costs that is considered just or, in appropriate circumstances, set the matter for a hearing in Court with respect to costs.

111/10 s10

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Documents to be filed before settlement conferences

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39B.03.  (1) Each party shall, at least 10 days before the date of a settlement conference, file a brief containing a summary of the facts, issues and law and shall deliver on the same date a copy to each other party.

         (1.1)  Should any party to the settlement conference not file their brief within the timeline allotted in paragraph (1), the Registrar shall remove the matter from the Settlement Conference List.

             (2)  Unless the parties consent or the Court otherwise orders, materials delivered to a judge under paragraph (1) shall not be placed in the Court file and shall not be disclosed to the trial judge.

             (3)  Upon completion of a settlement conference, the judge shall

             (a)  return to the parties or their counsel the materials delivered for the purpose of the conference; or

             (b)  ensure that the materials delivered for the purpose of the conference are appropriately disposed of.

33/22 s6; 4/24 s4

Attendance at settlement conference

39B.03A (1) Unless a judge permits otherwise, the following persons must attend a settlement conference in person:

             (a)  each party or an agent for the party that is authorized to enter into binding terms of settlement;

             (b)  any other person who may be liable to satisfy all or a part of a judgment in the proceeding or to indemnify or reimburse a party for money paid in satisfaction of all or a part of a judgment in the proceeding, or an agent for that person that is authorized to enter into binding terms of settlement; and

             (c)  if applicable, counsel for any person listed in (a), or (b).

             (2)  A judge may order that any other person whose attendance may be of assistance be present at the settlement conference and specify the manner of attendance.

             (3)  A person may be permitted to appear at the settlement conference remotely pursuant to rule 47A.

             (4)  A settlement conference judge may, on request, excuse a person from attending the settlement conference.

             (5)  Unless a judge orders otherwise, counsel attending a settlement conference must be fully authorized, briefed and prepared to discuss, deal with and, where appropriate, give undertakings with respect to all matters properly arising during the settlement conference.

111/10 s10; 17/89 s3

Communications during a settlement conference

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39B.04.  (1) All communications during a settlement conference

             (a)  shall constitute without prejudice settlement discussions;

             (b)  shall be privileged from disclosure; and

             (c)  shall not be admissible as evidence in a proceeding.

             (2)  Communications under paragraph (1) include, but are not limited to,

             (a)  the judge’s recollections of the settlement conference;

             (b)  the judge’s notes and records relating to the settlement conference; and

             (c)  anything said or written down during the settlement conference.

             (3)  No reference to the positions taken or admissions or concessions made by the parties, or to the opinion of the judge, at a settlement conference or other settlement-related proceeding, shall be contained in a brief or other document filed in a proceeding and shall not be referred to or commented on at the trial of that proceeding.

111/10 s10

Disposition of settlement conference

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39B.05.  (1) If the parties settle the proceeding during a settlement conference, a Memorandum of Settlement or notice of discontinuance shall be filed in accordance with rule 39.09.

             (2)  If the parties do not settle the proceeding during a settlement conference, the judge may

             (a)  convert the settlement conference to a pre-trial conference;

             (b)  order a pre-trial conference and provide directions on the filing of a trial record and Certificate of Readiness, if necessary;

             (c)  order a mini-trial;

             (d)  order a summary trial or expedited trial; or 

             (e)  make another order as is considered just. 

             (3)  A pre-trial conference converted from a settlement conference shall be governed, with any necessary modifications, by Rules 39 and 39A and the judge shall make an order with respect to the filing of the trial record and Certificate of Readiness.

111/10 s10

Settlement conference judge shall not preside at trial

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39B.06.  A judge who presides at a settlement conference shall not preside at the trial.

111/10 s10