by Gregory S. Pun
The Court of Appeal’s pre-hearing judicial settlement conference pilot project commenced in the autumn of 2004 under Civil Practice Directive #8 (revised 1 February 2005). Although the Practice Directive states that the project is a “pilot project [that] will operate for two years,” the project remains in force at this time.
The roster of judges participating in the project includes: Chief Justice Finch, Madam Justice Rowles, Madam Justice Prowse, Mr. Justice Donald, Madam Justice Levine, and Mr. Justice Chiasson. The settlement conference is interest-based, not rights-based, which is to say that the presiding judge does not speak to the factual or legal merits of the appeal, but rather seeks to find a mutually-agreeable resolution with the parties.
Participation in settlement conferences is entirely voluntary. All parties involved must consent to the process and anyone can revoke consent at any time. If consent is revoked during the process, the process comes to an end.
The procedure is set out in Practice Directive #8. In brief, a joint request for a settlement conference must be made, which takes the file out of the usual appeal stream and thus suspends time limits during the settlement conference process. Settlement conference procedure is handled by the Law Officer, not the regular registry staff; accordingly, materials relating to the settlement conference remain with the Law Officer and are not part of the regular appeal file.
The process involves two steps. First, following the joint request for a settlement conference, the parties (or their counsel) have an initial telephone conference with a judge, to determine if the matter is suitable for a settlement conference. If the matter is deemed suitable, the second step, a settlement conference, takes place.
The first request for a settlement conference was made in December 2004 and the most recent, the eleventh request, was made in September 2007.
Of the 11 requests, four involved family law matters; the other seven have been a mix: two involved personal injury, two involved commercial issues, one was a wrongful dismissal case, one was a human rights case, and one involved a civil procedure issue (an appeal from an order striking out a statement of claim).
So far, four requests have progressed to a full settlement conference. In one case, the parties settled after the conference. In the other three, the parties settled at the conference.
The remaining seven cases did not go to a settlement conference for various reasons: (a) at the initial teleconference a determination was made by the judge or the parties that the matter was not suitable for settlement conference; (b) a party withdrew consent; and (c) the parties agreed to discontinue the settlement conference process.
The establishment and the operation of the project through 2007 were due to the efforts of Ms. Meg Gaily, the Court’s former Law Officer. Her contributions to the project are gratefully acknowledged.
Gregory S. Pun, Law Officer, Court of Appeal
This article was published in the June 2008 issue of BarTalk. © 2008 The Canadian Bar Association. All rights reserved.