CASUAL LEGAL: Mandatory Pre-Trial Resolution: Getting to Your Day in Court

Attention: AMSC Members - Please distribute to all appropriate personnel

Mandatory Pre-Trial Resolution: Getting to Your Day in Court

By Victoria Merritt

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

Municipalities involved in litigation are well aware of the long timelines to secure a trial date. In an attempt to reduce the strain on court resources and improve those timelines, the mandatory dispute resolution rules have been revived effective September 1, 2019.

All civil court actions scheduled for trial after September 1, 2019 will be required to comply with what are known as the alternate dispute resolution (“ADR”) rules. The ADR rules are not new, but they have not been in effect since 2013.

The revival of the rules is a one-year pilot project, to see if they help or hinder trial timelines.

The rule itself requires parties to confirm they have participated in ADR before they can set a trial date. However, under the pilot project, parties only need to confirm they will participate in ADR prior to the scheduled trial date. This recognizes that trial dates are often scheduled a year or more in advance, leaving ample time for parties to engage in ADR.

There are many options for ADR, and parties have the flexibility to choose the forum most suited to their dispute, which will depend on a number of factors. The most common ADR options include:

• Mediation: A neutral third party will assist the parties in resolving the dispute, or portions of the dispute, by agreement. The decision of a mediator is not binding, and the process is confidential. If an agreement is reached, the parties will often prepare a Memorandum of Agreement that sets out the mutually agreed upon terms and conditions of the settlement.
• Arbitration: In general, arbitration is a more formal process then mediation. Often the process mirrors court processes (parties present evidence and argument), and the arbitrator will often be a subject matter expert in the area in dispute. The process is private and confidential. Unlike in mediation, the decision of an arbitrator is binding on the parties.
• Judicial dispute resolution: A confidential pre-trial settlement conference led by a judge. The judge will try to assist the parties in reaching a full or partial agreement. If no agreement is reached, the judge may give an opinion as to what decision they would make if they were the presiding justice at the trial. This opinion is non-binding; however, parties have the option to engage in a binding JDR.

Parties can apply for an exemption to the ADR rule, on a case-by-case basis, in recognition of the fact that some actions may not be suited to resolution through an ADR process, or that the parties may have already exhausted settlement discussions.

Time will tell if the reinstatement of the rule improves timelines or not, but for now municipalities should be prepared to engage in a suitable ADR proceeding as part of the litigation process.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. 

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP.  For more information on the Casual Legal Service, please contact Will Burtenshaw, Senior Director, Risk & Claims, at 780-431-4525, or toll-free at 310-AUMA (2862) or via email at wburtenshaw [at] auma.ca (wburtenshaw[at]auma[dot]ca).  Any Regular or Associate member of the AUMA can access the Casual Legal Service.