[Rules 13 & 14]
A Settlement Conference will be booked within 90 days of the time when the first defence is filed
Therefore, since a defence must be filed within 20 days of the plaintiff’s claim being filed, the settlement conference with occur within 110 days of the action being filed.
The settlement conference is before a judge or referee appointed by the court, with referees being more common in large cities.
These are mandatory and are for several reasons outlined in Rule 13:
- To resolve or narrow the issues in the action
- To expedite the disposition of the action
- To encourage settlement of the action
- To assist the parties in effective preparation for trial
- To provide full disclosure between the parties of the relevant facts and evidence
Settlement Conferences are beneficial because:
- It is cheaper than going to trial
- It is more efficient and beneficial for parties to settle because the parties can come to mutually beneficial agreements instead of having a winner and a loser.
- Compliance is more likely
- Trial is a gamble; it is a 50-50 shot
- It frees up the court so other matters can be heard
The court actively encourages settlement by:
- Making settlement conferences mandatory
- Introducing a formal offer to settle process with cost consequences for those who refuse reasonable offers.
Rule 14.07: Cost Consequences of refusing a reasonable deal
IF you refuse a reasonable offer by either the plaintiff or the defendant the court may award an amount UP TO TWICE the costs of the action if:
- The judgment is in favour of the party that makes the offer to settle
- The offer was made at least 7 days before trial
- The offer was not withdrawn OR did not expire before the trial
The settlement conference is to give FULL disclosure and/or discovery of relevant facts and evidence and is conducted with a judge present however, the same judge will not be ruling at the trial.
You must disclose any and all documents including a proposed list of witnesses (Form 13A), witness statements and evidence that you intend to rely upon in the trial 14 days before the settlement conference.
The purpose of disclosure is to avoid trial by ambush. Each party is entitled to a fair and just trial. The purpose for full disclosure before the settlement conference is so that each party can adequately prepare and make reasonable offers to settle before the conference should they be willing to do so.
Both parties can consent to an adjournment of the settlement conference through signing a Form 13B Consent and filing it with the court according to the method designated by the court.
Conduct of a Settlement Conference:
There are no hard and fast rules to settlement conferences but different court in different jurisdictions may run them slightly differently. Despite this information, you must be ready to set out the issues and the arguments effectively. This includes:
- Knowing the relevant facts and issues
- Have a clearly developed theory of the case
- Know the legal issues: know which case law and legislation on which you will be relying, if any
- Develop an offer in advance of the settlement conference to give to the other side. Note that this offer is not solid but can be considered as more of a guideline proposal, you can change and modify the offer in the Settlement Conference when working with the other side. You may also decide not to make an offer either.
- Determine your price. You must know what price and/or conditions you are willing to accept to set your lowest base-line because if you do not know your base-line you will not be able to negotiate effectively. Your base price will impact the initial offer you go into settlement with.
- Anticipate as much as possible their base-line
Judge’s Orders during a settlement conference [Rule 13.05]
During the settlement conference, it is possible that you do not settle all the issues, however, you may get clarity on the issues as well as the parties involved. Therefore, you can use the settlement conference to consolidate issues and either add or delete parties. In this way, the trial will go much more expeditiously. The judge present at the conference can make these changes for both parties.
Should you wish, the judge may make a final judgment at a settlement conference provided that all parties consent and equal or less than $2500 [Rule 13.05(4)]
No costs in Settlement conferences unless the party is not well prepared or is not directly available to approve a settlement or give directions to counsel - $100 max plus disbursements can be awarded
Next Step: Trial
You or the other party must schedule a trial upon notice of the court clerk during or after the conference
Offer to Settle [Form 14A]
Can be made by any party at any point till trial in writing to the other party, however, the offer must be reasonable.
An offer to settle is accepted through service of a notice of acceptance of the offer. This must be done before the offer expires or is rescinded. [Form 14B]
Consequently, an offer to settle may be rescinded at anytime and/or may contain a limitation period, by serving a notice of withdrawal of the offer. [Form 14C]
The terms of the settlement can be finalized and filed with a Form 14D. Remember when drafting a document use the same methods as in drafting a claim. Clear, concise and in numbered paragraphs.
Enforcement of an Offer to Settle
If a party fails to comply with an accepted offer the other party can:
- Bring a motion for judgment on the terms of the agreement
- Continue on to trial as if no offer had been made
Once the defendant complies the settlement, you will need to dismiss the action on consent. This is done by filing a Request for Clerk’s Order on Consent (Form 11.2A).