Discussions at a pre-trial conference are generally without prejudice and cannot be subsequently disclosed in the proceeding.
Rule 50.09 of the Rules of Civil Procedure states:
No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in the proceeding with respect to any statement made at a pre-trial conference, except as disclosed in an order under rule 50.07 or in a pre-trial conference report under rule 50.08.
However, in Grech v. Scherrer, 2021 ONSC 1292, the court considered an exception to this rule in determining whether the defendant should be permitted to amend his statement of defence following the conclusion of the evidence at trial, but before closing submissions. The defendant wanted to plead the doctrine of self-defence.
Justice McKelvey permitted the defendant to rely on his pre-trial conference memorandum to demonstrate that the plaintiff was not taken by surprise by the request to amend the statement of defence.
In summary, although communications at pre-trial conferences generally cannot be disclosed, disclosure may be permitted to refute an assertion that a party was taken by surprise.