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Difference between revisions of "Small Claims Settlement Conferences (20:XI)"
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Small Claims Settlement Conferences (20:XI) (view source)
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A judge may also order that multiple claims be heard at the same time, or consolidated into one claim233. The distinction is important. Claims heard at the same time may each individually be awarded up to $25,000, while claims which are consolidated into one claim may only be awarded $25,000 combined. | A judge may also order that multiple claims be heard at the same time, or consolidated into one claim233. The distinction is important. Claims heard at the same time may each individually be awarded up to $25,000, while claims which are consolidated into one claim may only be awarded $25,000 combined. | ||
Any agreement valid under contract law can result in a binding settlement. Agreements entered into by lawyers with their client's knowledge and consent are binding but can be set aside in some circumstances234. If all claims are not settled, the parties should acquire a record of the settlement conference, which may outline all of the issues in the case, all admissions, the number of witnesses, the anticipated length of trial, and anything that must be disclosed. | |||
'''NOTE:''' If the settlement pertains to an action against a lawyer for which a complaint has been filed with the Law Society, a party cannot use complaint withdrawal as a bargaining technique; it is improper during settlement negotiations to offer to withdraw a complaint against a lawyer as a part of the settlement235. | |||
== D. Disclosure == | |||
Trial by ambush is not permitted. Each party is entitled to know the evidence for and against its position. If the parties cannot reach a settlement, the focus will turn to trial preparation. The judge at a settlement conference has the power to order production of documents and evidence. Each party should attend the settlement conference with a list of documents and evidence that is believed to be in the possession of the other party. | |||
A judge will order the parties to exchange copies of all documents or allow for their inspection before trial. Disclosure must be timely236. These documents should be compiled in a tabbed binder for easy reference at trial. | |||
Each party must be prepared to disclose the name of each witness that party intends to call, indicate what evidence each witness will give, and provide a time estimate. If expert evidence will be used, it is helpful if a written report (or at least a draft copy) is available for the settlement conference. If an expert report is not available, parties will be ordered to exchange those reports prior to trial. There is a minimum deadline of 30 days before trial237 however the judge at the settlement conference can be asked to change the time limits. | |||
If a party does not comply with a disclosure order, a judge may adjourn the trial, the settlement conference, or both, order that party to pay expenses, order the trial to proceed without allowing that evidence to be used, or dismiss the action. | |||
'''NOTE:''' For case law relating to the disclosure of medical documents and ethical obligations of physicians to their patients see ''Halliday v McCulloch'', 1986 CanLII 1004 (BC CA), ''Hope v Brown'', [1990] BCJ No. 2586, ''Davies v Milne'', 1999 CanLII 6654 (BC SC), and ''Cunningham v Slubowski'',2003 BCSC 1854 (CanLII). | |||
'''NOTE:''' For case law on obtaining disclosure from the Crown (e.g., from a related criminal case) in a civil case see ''Huang (litigation guardian of) v Sadler'', [2006] BCJ No. 758 and ''Wong v Antunes'', [2008] BCSC 1739 (CanLII). For case law pertaining to the admissibility of evidence obtained through electronic surveillance (e.g., recording telephone conversations and videotaping) and whether it will be considered a violation of the ''Privacy Act'', RSBC 1996, c 373 see ''Watts v Klaemt'', 2007 BCSC 662 (CanLII) and ''Cam v Hood'', 2006 BCSC 842 (CanLII). For case law on obtaining evidence from third parties see ''Lewis v Frye'', 2007 BCSC 89 (CanLII). | |||
A judge may also order the exchange of all case law prior to the trial date. | |||
Parties should consider writing to the other side after the settlement conference to confirm the deadline, the documents required, and remedies that will be pursued if there is no disclosure. When sending documents, it is important to include a list or outline of what material is enclosed. | |||
== E. Enforcing a Settlement Agreement238 == | |||
If an agreement reached at a settlement conference includes payment, and if a party does not comply, the agreement can be cancelled. After filing an affidavit describing the non-compliance, the person entitled to payment may file a payment order for either the amount agreed to by the parties as the default amount and noted on the record as the default amount endorsed by the judge at the settlement conference or the full amount of the original claim if there was no default amount endorsed by the judge. | |||
