Pre-trial conferences serve two purposes: to see whether the case can settle and if not determine trial procedure as far as possible subject to final say of the trial Judge.
Too much emphasis is often placed on pre-trial conferences as a second crack at settling the case. The focus should be on trial. 2nd pre-trial conferences are sometimes used to complete settlements or revisit trial management issues not fully considered at the first pre-trial conference.
Preparing for the Pre-Trial Conference
Expert reports are due as early as 90 days before the pre-trial conference, therefore preparation for a pre-trial conference starts 180 days before the pre-trial conference or generally when the action is set down for trial. This is the time to ensure all appropriate experts have been retained.
Parties must attend the pre-trial conference brief. They need to know what it’s all about and they must be prepared for the possibility that a Judge is going to ask them challenging questions in front of the opposing party. They must have authority to settle the case.
Pre-Trial Conference Briefs
Pre-trial conference briefs must be served at least 5 business days before the pre-trial conference, but it is wise to do so sooner.
Rule 50.04 sets out that pre-trial briefs should not contain argument, only concise statements of:
- The nature of the proceeding;
- The issues and the party’s position;
- The names of witnesses and time estimates for testimony; and
- Remaining steps and time estimates to complete them.
Pre-trial conference briefs should also contain any key documents, including expert reports. It is necessary to include a witness list. Documents that may be of assistance but are not key should be brought to the pre-trial by counsel.
There is a slight difference between an ordinary procedure pre-trial conference brief and a simplified procedure pre-trial conference brief: the trial management plan and the trial management checklist, both discussed below. Therefore, be careful to choose from the appropriate of the following pre-trial briefs:
Trial Management Plan
New as of January 1, 2020, simplified procedure matters require a Trial Management Plan to be completed.
As of January 1, 2020, rule 76.10 of Ontario’s Rules of Civil Procedure requires a Trial Management Plan to be agreed upon at least 30 days before the pre-trial conference. This is to have a plan to get trials done in 5 days or less.
Not only is the Trial Management Plan filed at least 5 days before the pre-trial conference (rule 76.10(4)(a)(0.i)) so that it can be discussed at the pre-trial and approved by the Court, the approved version becomes part of the trial record filed at least 10 days before the trial (rule 76.11(4)(d)).
Trial Management Checklist
For matters following the simplified procedure, a Trial Management Checklist is required in addition to a pre-trial conference brief (technically only a 2 page statement of issues is required, but you can use the pre-trial conference brief). It’s a bit odd that there is an extra document required for simplified procedure. This may relate to enhancing discussions around the possibility of a summary trial.
Affidavits of documents are supposed to be filed for summary procedure pre-trial conferences. This is an odd rule and in reality affidavits of documents are rarely filed. In practice, they are not needed if key documents are in the pre-trial conference brief.
Judicial Powers at the Pre-Trial Conference
The Judge at the pre-trial has broad powers, subject to adjustment by the trial Judge. Highlights of topics for discussion and orders includes:
- Trying to simplify the issues or explore possible admissions;
- Exploring liability and damages;
- Date and length of trial;
- Number of experts and timing for expert reports – this raises an opportunity to seek leave to call more than 3 rule 53.03 experts;
- Establishing a timetable;
- Addressing any further motions or examinations;
- Ordering a case conference;
- Ordering an agreed statement of facts;
- Will say statements;
- Ordering security for costs; and
- Any other matter that may promote justice, make trial efficient and minimise costs – this is an opportunity to get creative.
The product of a pre-trial conference is a settlement or a pre-trial conference report.
More on Pre-Trials
For pre-trial services, please take a look at our Pre-trial Conference Package.
Resources by a trial lawyer, available online:
If you would like legal advice from an experienced trial lawyer:
This website and all resources are trial information, not trial legal advice.
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