Settlement conferences important to Small Claims Court process

By Paul Russell, LegalMatters Staff • Most actions launched in Ontario Small Claims Court never make it to trial thanks to settlement conferences held in advance, says Toronto paralegal Joyann Oliver.

“Anywhere between 80 to 90 percent of cases are resolved at these meetings,” says Oliver, co-founder of JNR Legal Services. “Since trials are very time consuming and expensive, both sides have a real incentive to work out a solution beforehand.”

The plaintiff and defendant along with their legal representatives must attend these conferences, she tells LegalMattersCanada.ca. If the defendant refuses to participate, she says the judge can be asked to strike their defence and make a default judgment.

Oliver says settlement conferences are usually led by deputy judges of the court.

“Their job is to have the parties work together to come to a resolution that both sides can live with,” she says. “This is an opportunity for both sides to present their version of events and express how they feel about what happened.”

Emotion often leads to claims

Oliver explains that emotion rather than logic often leads people to launch a Small Claims Court action, where the maximum payout is $35,000.

“Maybe someone is hurt, taken advantage of or is feeling betrayed,” says Oliver. “If they can be convinced to set aside those emotions and just look at the legalities of the situation, a settlement can be reached in most cases.

“It is the deputy judge’s job to take the raw emotions out of the proceedings and to look at it from a legal perspective to determine the parties’ legal entitlements,” Oliver adds.

After hearing from both sides, she says the judge will give an opinion on the likelihood of success for each side if they proceed to a hearing.

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“Both parties can either accept or reject that opinion, but it is another way to convince them to find a solution before the trial,” says Oliver, adding the judge will also remind them of the time commitment and financial cost of proceeding with the action.

“If you go to trial and lose, you can be responsible for up to 30 percent of the other side’s costs,” she says.

If no agreement is reached at a settlement conference, the judge will schedule a court date for the case, she says, with a different judge hearing the evidence.

“Anything said at the settlement conference is completely confidential,” Oliver says. “That is why it is very important that people who may be called as a witness at the trial do not attend the settlement conference.”

To prepare a client for a settlement conference, she reviews with them their statement of claim and all the documentation in support of their arguments, plus the other side’s defence.

“All these documents must be exchanged 14 days before a settlement conference, along with your list of witnesses,” Oliver says.

Documentation lists can be amended

Once the case moves to Small Claims Court, witness and documentation lists can be amended 30 days before trial, if necessary, she says.

“Maybe you became aware of something that supports your case after the settlement conference was over. You can still provide those documents at your trial, provided it is submitted to the court and other side in advance,” Oliver notes.

Another advantage of settlement conferences is that judges can order the other side to provide documentation. She gives the example of a wrongful dismissal case where a firm was not providing employment records.

“You can ask the judge to order the other side to give you that documentation, which may strengthen your case,” Oliver says.

All non-urgent Small Claims Court actions were put on hold on March 16, in response to the COVID-19 pandemic. In a recent memo, Ontario Superior Court Chief Justice Geoffrey Morawetz stated the scheduling for settlement conferences for these actions can now be done remotely.

“It is expected that most conferences will take place by video conferencing,” his memo reads. “A limited number may be held by telephone conferencing … while the Ontario Small Claims Court is an important source of timely access to justice in Ontario, the health and safety of those who use and work in the Small Claims Court is our priority.”

This is the second of a three-part series, with the first detailing how to launch a Small Claims Court action. Next month, Joyann Oliver discusses what goes on before and during a Small Claims Court trial.