8. Pre-trial Court Appearances

Case Management Conferences

Some courts have voluntary or mandatory case management or pre-trial conferences. Generally, these conferences help to resolve disputes or deal with procedural issues, such as making sure parties are ready for trial or that documents have been disclosed. In some cases, there will be an opportunity to exchange settlement offers at a case management conference. Before you attend a conference, be sure to do your research so you are prepared for the meeting.

How to prepare for a conference:

• Be sure proper Court forms have been used to start the case, or application.
• Be ready to tell the judge what order you are seeking or opposing.
• Understand your case (your rights and responsibilities).
• Make sure you have given copies of all relevant documents and other evidence to the other parties before the conference.
• Consider any procedural matters that still need to be dealt with (such as disclosure you have not received yet or a request to be referred to mediation).

Pre-trial Conference

A pre-trial or case management conference is usually a short meeting between you, the other party and a judge. The purpose of these conferences might be to:

• See if the matter is ready to proceed to trial;
• Review the proceedings that have taken place to date, such as pleadings, exchange of documents, discoveries, motions;
• Discuss what steps need to be taken in order to move the case ahead to trial and who will take those steps and when;
• Discuss evidence including whether there can be an agreed statement of facts, exhibits, witnesses, and expert witnesses;
• Expected duration of the trial, and time required for each party (including argument after the evidence is presented); and
• Orders required before trial.

Settlement Conference

The purpose of a settlement conference is generally to provide a way to resolve your dispute with the assistance of a judge or judicial officer. This might include:

• Addressing outstanding issues such as the exchange of documents;
• Finding common ground;
• Settling some or all issues;
• Discussing what you are really seeking; and
• Other procedural issues.

A judge might make an order during a conference, such as ordering one party to provide the other party with certain documents. Make sure to take a pen and paper in order to take notes of what was discussed or ordered.

Before a lawsuit goes to trial, issues may come up that require the court to decide. These issues are handled through applications (sometimes also called motions). A motion or an application is a request to the court for an order to deal with one or more issues in advance of a trial.

Procedure

To request a motion, you will need to apply with the correct court form. These forms need to be filed with the court and served on the other party. Some courts require replies to motions, much like the initiating court forms that started the lawsuit. In that case the other party has a limited amount of time to reply to the motion and serve their reply to the motion.

To avoid wasting time, it is a good idea to discuss the date of the hearing with the other party to choose a date when you are both available and the court has an opening hearings date and time. Of course, if you cannot agree on a date, you can unilaterally choose a date for the hearing, but the judge may adjourn it so the other side can attend.

Some motions are about procedural issues that must be resolved so the trial can proceed, like the exchange of documents or whether someone must be examined by a doctor. Other motions are seeking interim (temporary) orders if something needs to be arranged until it can be dealt with at trial. For example, if there is a dispute over property, but, in the meantime before trial, the utility bills need to be paid. If you cannot agree with the other party about something that needs to be done before the trial, you can apply for an interim court order about how to deal with things until the matter is dealt with at trial.

Some motions can be filed at the courthouse without a party having to appear in court. Seek legal advice or assistance on which motion is appropriate in your situation.

Hearings

For most motions you and the other party must attend a hearing. A hearing is often before a judge or court officer who will decide whether or not to grant the order you are requesting. Both sides will be able to argue why the order should or should not be made. For most hearings, you can only provide evidence through affidavits (sworn written statements), whereas, in some limited cases, you may be able to call witnesses to give evidence in person at a motion. You will need to check with your legal help services or the court rules to know what type of evidence you are allowed.

Although a motion may determine the course that a trial will take, it is not the trial and will normally not result in a final order. All a judge at your hearing can do is make an interim decision on the issues raised in the motion. They will not be able to make other decisions about your case.

At the start of your motion or hearing, the person applying will need to explain what orders they are seeking and why the judge should make them. Be as clear as possible. You do not need to tell the judge all the details of your case. Focus on the issues relating to the motion / application. Then the other party will be allowed to explain which orders they think the judge should make and which they should not. The party applying for the order will then be given a chance to reply.

Hearings are a lot shorter than trials. The judge may only give you a few minutes to present your position to them (often as little as 20 minutes for all parties). Be sure to stay on topic and keep your arguments short and to the point. Be sure to prepare a lot ahead of time.

Chambers Applications

The court in which preliminary applications and motions are heard is often called “chambers” or “motions court”. Either a judge or a “master” may preside over chambers. Masters are like judges but are limited in the types of issues they can decide on; they typically hear matters related to pre-trial and procedural matters.

Chambers is normally reserved for brief applications. If your application will take more time, the court scheduler may set a special time and date for the longer hearing.

Evidence by Affidavit

The evidence that the judge will consider in the motion, is sworn affidavit evidence that you must submit in advance of the hearing.

Adjournment

If you need to have the hearing adjourned (postponed) to a later date, you can ask the judge for an adjournment. Before granting an adjournment, the judge must be satisfied that there is a good reason to do so. If an adjournment is granted, costs may be assigned against you or conditions set on the adjournment.

In cases where both parties consent to an adjournment, they can make a very quick appearance or often just file a form and not have to make an appearance at all. This might happen if one party is not available or if the evidence required is not available yet.

Decision

Once the judge has all the evidence and everyone has explained their positions on the issues raised, the judge will decide. They may either dismiss the motion or make all or some of the orders requested. Usually the judge will give oral reasons of their decision right then. In some cases, the judge will give written reasons at a later date. Make sure to take notes of the decision. One of the parties (usually the successful party) will need to prepare a written order of the judge’s decision, for the judge to sign.

Costs

A judge will also consider whether the unsuccessful party should be required to pay some money to the successful party to compensate them for having had to bring the motion. In most cases, the amount of money (called “costs”) they will order is based on a chart of costs in the Rules of Court or may be discretionary. Generally, the person who wins is entitled to a sum of money to help pay the costs of the motion. One of the things they might consider include whether it was necessary or reasonable to make the motion, and reasonable to oppose it.

If the judge decides that the motion was not necessary or was not reasonable, or opposing it was not reasonable, the judge may make an award of costs against the unsuccessful party who was not being reasonable. This means the unreasonable party will have to pay the other party’s costs of making the application / motion. The amount of costs will be decided either immediately or at a later date.

If the person who is required to pay the costs does not pay, a judge may, on application:

• Dismiss or put on hold that person’s case in the lawsuit;
• Require the person to pay security into court; or
• Make some other appropriate order.