While civil case conferences may seem a relatively quick and less formal way to secure judicial intervention to assist in moving a case forward, particularly at a time of notable court delays and backlog, a recent endorsement from the Superior Court of Justice suggests that counsel ought to be discerning and cautious when seeking such case conferences.
In the Endorsement of RSJ Richetti (Central West) in Davies v. Cossnell, counsel for one defendant sought a case conference to address various issues, including plaintiff counsel’s failure to address a service issues with respect to service of the Statement of Claim on the co-defendants, failure to answer certain letters and requests, and failure to answer undertakings.
RSJ Richetti sought to deal with the issues by identifying the various motions needed and setting a timetable to have the motions scheduled to be heard by the Court.
On the service issue, of note, His Honour appears to have been implicitly critical of defence counsel insisting on proper service of the Statement of Claim through a motion, rather than simply accepting service since counsel had been retained and her clients were obviously aware of the action – perhaps something to bear in mind where such an issue exists in a case.
With that said, His Honour was prepared to timetable the motion, at which point plaintiff’s counsel agreed to bring the motion – over three years after commencement of the action, after some discoveries, and only after judicial intervention on the case conference.
On the issue of plaintiff counsel’s failure to respond to certain letters and requests, it appears this, in part, related to defence counsel seeking the plaintiff’s consent to a Wagg motion. When RSJ Richetti proceeded to timetable a Wagg motion, however, defence counsel advised that he did not have instructions to bring such a motion, but simply wanted to the court to direct plaintiff counsel to respond to his letter seeking consent for the same by a certain date.
His Honour was critical of this approach, noting it as a waste of the court’s time where the court “was being used to enforce civility and responsiveness between counsel by timetabling correspondence between counsel.”
Finally, on the issue of the plaintiff’s outstanding undertakings, defence counsel sought an Order at the case conference that undertakings be answered within 60 or 90 days, on the basis of only brief letter identifying that undertakings remained outstanding. RSJ Richetti was also critical of this approach, where there was no evidence before him and no information as to what the undertakings were or whether the proposed timeframe was reasonable or not. His Honour noted this to also be a waste of time.
Accordingly, His Honour concluded the case conference and directed that any motions required ought to be scheduled through the trial coordinator’s office.
RSJ Richetti described the case conference as demonstrating a growing problem with civil case conferences, and noted it as “a prime example of wasting precious judicial resources by all counsel in this matter.” His Honour provided some guidance as to what ought to be considered with respect to civil case conferences:
- They are not intended to provide substantive remedies (unless on consent), but are for procedural matters. If substantive relief is being sought, the matter ought to be scheduled for a hearing, not a case conference, to allow the court to decide the issues on evidence and submissions.
- An urgent hearing can be scheduled and timetabled at a civil case conference.
- If parties are unable to agree on dates or a timetable, then a case conference may be necessary, but a party acting unreasonably may be subject to costs awarded against them at the conference, if appropriate.
- A case conference is not intended to be and should not be used for the court’s intervention to facilitate civility, reasonable or responsive conduct by opposing counsel, which is already required by the Rules of Professional Conduct.
Ultimately, His Honour concluded that if a party or counsel is being unreasonable, unresponsive or obstructionist to motions to be or actually brought, such behaviour can be dealt with by the court through costs, potentially punitive costs, against a party or even perhaps against counsel.
While perhaps a counterintuitive outcome to encourage motions in the face of the limited judicial resources alluded to, counsel should pay heed to the guidance provided by RSJ Richetti when considering the value of a civil case conference, particularly if the relief being sought would more appropriately be sought on a motion.
More importantly, it seems clear that the court is encouraging reasonableness and cooperation among parties and counsel to avoid further strain on a strained system, be it through a case conference or motion.
 2022 ONSC 654.