8.2 Settlement Conferences & Minutes of Settlement

Why Settlement Conferences Exist

Rule 13.01(1) makes a settlement conference mandatory in every defended action — the only exception is where the defence admits the entire claim and proposes payment terms under Rule 9.03(1), since there is nothing left to dispute. The conference must be held within 90 days after the first defence is filed. This front-loaded, judge-supervised meeting is what distinguishes Small Claims Court procedure from a Superior Court action heading straight to discovery and trial, and it is one of the most heavily tested procedural sequences on the exam.

The Five Statutory Purposes (Rule 13.03(1))

1. Resolve or narrow the issues in the action
2. Expedite the disposition of the action
3. Encourage settlement of the action
4. Assist the parties in effective trial preparation
5. Provide full disclosure between the parties of the relevant facts and evidence

A judge who presides at a settlement conference cannot preside at the trial of the same action (Rule 13.08). This protects the openness of the conference, since both parties are expected to speak candidly about the strengths and weaknesses of their case in a way they never would in front of the trial judge.

Preparing for the Conference

At least 14 days before the settlement conference, each party must serve on every other party and file with the court:

• A copy of any document to be relied on at trial that was not already attached to the claim or defence (contracts, invoices, expert reports, photographs)
• A completed List of Proposed Witnesses (Form 13A)

Witnesses themselves do not attend the settlement conference — a party simply summarizes what each witness would say at trial. A plaintiff preparing for the conference should organize proof of both liability (what the defendant did wrong) and quantum (the dollar value of the loss), because the settlement conference is the parties' first real test of how their evidence holds up.

Example: A homeowner suing a roofing company for a leaking roof should be ready to summarize what a building inspector would testify to at trial (for instance, that the flashing was improperly installed), even though the inspector does not attend the conference itself.

Attendance and Authority to Settle

Parties, and their representative if any, must attend personally, or by telephone or video conference where permitted, and must have authority to settle. A party who needs another person's sign-off — a corporate representative who must reach a director, for example — must arrange ready telephone access to that person throughout the conference, whether it runs during or after regular business hours.

Consequences of Non-Attendance

A party who is so inadequately prepared that it frustrates the purpose of the conference, or who fails to file the required disclosure, can also be ordered to pay costs under Rule 13.02(7).

What the Judge Can Do

Beyond simply facilitating discussion, a settlement-conference judge has broad order-making power under Rule 13.05, including orders to add or remove parties, consolidate actions, stay or dismiss a claim, amend or strike a pleading under Rule 12.02, direct production of documents, change the place of trial, direct an additional conference, or award costs.

Consenting to Final Judgment

For claims at or under the appealable limit, the parties may file a signed Consent (Form 13B) before the conference agreeing that, if mediation fails, the judge may render final judgment right there rather than sending the matter to trial. This saves the parties the separate trial-setting fee and months of additional delay, and it is a valuable option for small-dollar, low-complexity disputes where a full trial would be disproportionate to what is at stake.

Ending the Conference: The Memorandum

At the conclusion of every settlement conference, the court prepares a memorandum summarizing: recommendations made under Rule 13.04, issues remaining in dispute, matters the parties agreed on, relevant evidentiary matters, and scheduling information for the remaining steps. This memorandum is filed with the clerk and given to the trial judge; it is not evidence, but it frames what the eventual trial will actually need to resolve.

Matters discussed at the conference are confidential and cannot be disclosed to anyone until the action is disposed of, except with the consent of all parties (Rule 13.03(4)). This confidentiality is what allows parties to speak candidly about settlement positions without fear that admissions made in the room will be used against them at trial.

Minutes of Settlement

If the parties reach an agreement, whether at the conference or afterward, even after a trial date has been set, they sign Terms of Settlement (Form 14D) and file it with the court, which ends the action without a trial and avoids the trial-setting fee. After a settlement conference has been held, a claim against a party who is not in default cannot be withdrawn or discontinued without that party's written consent or leave of the court (Rule 13.09) — this stops a plaintiff from quietly abandoning a claim to avoid an unfavourable settlement-conference recommendation and refiling later. The costs of the settlement conference itself, exclusive of disbursements, are capped at $100 unless the court finds special circumstances justifying more (Rule 13.10).