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RULE 39 Analysis
RULE 39
Application of this rule 39.01. Unless otherwise specified or ordered, this rule applies to pre-trial conferences and settlement conferences. Setting down conferences 39.02. (1) The Registrar shall maintain a Pre-Trial List and a Settlement Conference List setting forth, in chronological order, each proceeding that has been placed on those Lists under these rules or an order. (2) The Registrar shall publish a list, not later than the first day of each month, setting the dates and times when pre-trial and settlement conferences are scheduled for cases during the next calendar month. (3) Within 15 days of receipt of notice of the date and time for a conference, (a) the parties may in writing jointly request 3 alternate conference dates or times and the Registrar shall (i) assign one of the alternate dates or times; or (ii) move the proceeding to the bottom of the list, and notify the parties accordingly; and (b) a party may apply to a judge to postpone a scheduled conference and to fix another date. 39.03. Notwithstanding any other rule, a judge in a proceeding may, on his or her own initiative or at the request of a party, order the parties to attend a pre-trial conference or a settlement conference. Attendance 39.04. Unless otherwise ordered, counsel who attend a conference shall be counsel who are otherwise fully authorized, briefed and prepared to discuss, deal with and, where appropriate, give binding undertakings with respect to all matters properly arising during the conference. Conference procedures 39.05. Nothing in these rules prevents a judge during a conference, if he or she considers it to be in the interests of justice, from (a) speaking directly to the parties; (b) inviting a party, in the presence of counsel for that party, if any, to speak during the conference; and (c) meeting with one or more parties or counsel for those parties or both in the absence of one or more of the other parties to the proceeding. Discussions are without prejudice 39.06. (1) Discussions at a conference are without prejudice and shall not be referred to a subsequent application, or at the trial except as disclosed in an order. (2) Except as provided in rule 39A.05, the judge conducting a conference shall not disclose to the trial judge or to another person what positions were taken or what admissions, concessions or opinions were made or given during the conference, and shall not include reference to those matters in a written report of the conference subsequently prepared by him or her. Remote conferencing 39.07. A judge may, if requested by one or more of the parties, direct that a conference be held wholly or partly by telephone, teleconference or video conference. Agreement on issues 39.08. (1) If there is an agreement during a conference resolving all or any of the issues in dispute, it shall be either (a) in writing and signed by all parties participating in the agreement or their solicitors; (b) read into the record in the presence of the judge presiding over the conference; or (c) with leave of the judge presiding over the conference, the subject of a consent order to be filed at a later date. (2) Notwithstanding rule 39B.04, an agreement resolving any or all of the issues between the parties which is reduced to writing and signed by or on behalf of the parties shall be admissible in evidence for the purpose of enforcing that agreement. Settlement 39.09. When a proceeding is settled, the plaintiff or applicant shall file within 10 days of settlement (a) a Memorandum of Settlement containing a statement that the matter has been settled; or (b) a notice of discontinuance. Consequences of failing to file documents 39.10. Where counsel or a party fails to file documents required for a conference before the deadline for filing set out in the Rules, a 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. Consequences of failure to attend conference or lack of preparedness 39.11. Where counsel or a party who is required to attend fails to attend a conference or where counsel is not prepared or authorized to proceed in accordance with rule 39.04, the judge may make an order that is considered just, including an order (a) establishing a timetable for the proceeding; (b) setting the date for a further conference; (c) either (i) moving the matter down on the Pre-Trial List or Settlement Conference List, or (ii) removing the matter from the Pre-Trial List or Settlement Conference List without prejudice to the parties to file another Certificate of Readiness under rule 40.04; (d) requiring a person to attend at a conference; (e) staying further proceedings until a conference has been held; (f) striking out a document filed by a party; and (g) as to costs or setting the matter for a hearing in Court with respect to costs. |