Canadian pre-trial conferences
10.32The mechanism of pre-trial conferences can be geared to settlement or preparation for trial. In the latter case, it will be focused on identifying and discussing the issues in dispute. In Alberta, the focus is on trial preparation. The court, on application of a party or on its own motion, can direct that a conference consider “any other matters that may aid in the disposition of the action, cause or matter”.1094 The trial judge can conduct the conference.
10.33In Ontario the court has power to consider “the possibility of settlement of any or all of the issues in the proceedings”.1095 The trial judge does not conduct the conference. Research showed that the rate of settlement increased by 10% and the overall productivity of the court was increased by 15%.1096 The disadvantage of the procedures is that a lot depends on the skill of the judge to handle it appropriately and not exert pressure to settle. Indeed such conferences may delay or discourage private attempt at settlement:1097
“Pre-trial proceedings, which often occur before the parties are fully committed to resolution of their conflict in the courtroom, offer the best opportunity for blunting the edge of the adversarial nature of legal proceedings without abandoning what is of value in the existing system.”1098
10.34The Saskatchewan Law Reform Commission suggested that a provision be inserted in custody legislation for pre-trial conferences as follows:1099
“(A)Upon first appearance before the court in an application for custody, or at any time prior to the hearing of the application, the court may direct a pre-trial conference before the judge or other person designated by the court, for the purpose of:
(i)resolution or narrowing of issues;
(ii)disclosure of the nature of the evidence which will be presented at the hearing;
(iii)encouragement of settlement or conciliation; and
(iv)settling procedures to be adopted in the proceedings including appointment of amicus curiae, and directions of a custody investigation.
(B)(1)Upon consent of the parties, the pre-trial conference may be arranged by the registrar without an order of the court directing the conference.
1094 Rule 219(1)(d). In Alberta Law Reform Institute; Dispute Resolution; A Directory of Methods, Projects and Resources, Research Paper (July 1990: No.19,) at 29.
1095 Rule 50.0(a).
1096 Holland, “Pre-trial conferences in Canada”, (1987), 7 Adv. Q. 416, 417.
1097 Alberta Research Paper no. 19 at 30, supra.
1098 Saskatchewan Law Reform Commission, Proposals on Custody, Parental Guardianship and the civil rights of minors (December 1981), at 16.
1099 Ibid at 17.