Date: 19991217
Docket: T-853-96
BETWEEN:
MARIETTE NYGREN,
Plaintiff,
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA,
Defendant.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The pre-trial conference procedure, if entered into in the proper spirit, with meaningful pre-trial conference memoranda and a briefed client ready to try to negotiate a resolution, or at least to agree to steps to simplify the trial, is a profitable exercise. But when the requirements are either misunderstood or ignored, the pre-trial conference is usually merely a fruitless time-consuming exercise.
[2] These Reasons and Order arise out of a once-adjourned pre-trial conference on 17 December 1999. In this matter, which involves an allegation of constructive dismissal, an overtime claim and resolution of a grievance, the Plaintiff seeks some $45,000. The hearing is presently scheduled for three days, the cost of which will in all likelihood exceed the amount at stake.
[3] In an effort to settle, the Plaintiff, who was present with counsel, had dropped a portion of the claim amounting to about $9,500. This would seem to open the way for ad hoc settlement discussions, at the Pre-Trial Conference, as set out in Rule 263(a):
| 263. Scope of pre-trial conference - Participants at a pre-trial conference must be prepared to address |
| (a) the possibility of settlement of any or all of the issues in the action and of referring unsettled issues to a dispute resolution conference; |
[4] Sgayias, in both the 1999 and 2000 editions of the Federal Court Practice, provides a gloss on this Rule:
| Rule 263 is similar to former rule 491(8). The principle change is the requirement in rule 263(a) that the parties and their solicitors come to the pre-trial conference ready to discuss the possibility of settlement or alternative dispute resolution. The discussion of these subjects is facilitated by rule 266 which provides that the judge conducting the pre-trial conference will be the trial judge only if all the parties consent. |
[5] Clearly the parties must come to the pre-trial conference ready to at least enter into meaningful settlement negotiations if there is any opening for such. Indeed, Rule 260 provides:
| 260. Participation at pre-trial conference - Unless the Court directs otherwise, the solicitors of record for the parties and the parties or their authorized representatives shall participate in a pre-trial conference. |
Sgayias, in commenting on Rule 260, points out that there is no definition of "authorized representatives" and then, quite properly, goes on to note that an authorized representative, either of a corporation or of government, must be authorized to discuss the subjects listed in Rule 263, including settlement. Now it could well be unrealistic, in some instances, to expect a representative of a party to come fully equipped to make complex, costly or far reaching decisions. However, the representative at a pre-trial conference must be vested with enough authority to make settlement discussion meaningful. Otherwise there would be no point in having a requirement to address settlement possibilities included in the rule dealing with the scope of a pre-trial conference.
[6] In the present instance, the amount is, as I have pointed out, modest and indeed, the amount for which the claim might be compromised, or even the amount of the full claim, is less than the cost of a three day trial to the parties and to the taxpayer.
[7] Rule 260 requires a representative to be present. Often, particularly when either the amount at stake is modest, or where the client is at a distance, the mandatory attendance requirement is waived, sometimes by Court order but, I expect, often tacitly, so long as the party, or an authorized representative, is available by telephone to engage in meaningful settlement discussion and to make settlement decisions within reasonable and objective limits.
[8] In the present instance the Crown"s representative, available by telephone, was not authorized to make any decision as to settlement, but could only make representations to superiors. Indeed, I am advised that, in this matter which now, with the abandonment of part of the claim, involves only $35,000, a claim which will in all likelihood be further discounted, it will take a Deputy Minister to make any decision, or to make any offer or counter-offer as to settlement. This is neither within the intent nor the spirit of the Rules dealing with pre-trial conferences.
[9] One might be tempted to expand on the sorry state of government if an employee in a managerial position can not make a decision involving $35,000, or perhaps even half that amount. However, if it requires a Deputy Minister"s attendance in Vancouver, for an hour, over what is a small claims matter, so be it.
ORDER:
| The Pre-Trial Conference is further adjourned to 3 p.m. on Monday, 20 December 1999. The Crown shall have someone in attendance at the Conference who is appropriately instructed so as to be able to take part in settlement negotiations and, if there is a reasonable opportunity, to complete a settlement. Costs of the further adjourned Pre-Trial Conference to the Plaintiff, in the amount of $300, payable forthwith. |
(Sgd.) "John A. Hargrave"
Prothonotary
December 17, 1999
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| STYLE OF CAUSE: MARIETTE NYGREN |
v.
HER MAJESTY THE QUEEN
| PLACE OF HEARING: VANCOUVER, BC |
DATE OF HEARING: DECEMBER 17, 1999
REASONS FOR ORDER AND ORDER OF
MR. JOHN A. HARGRAVE,
PROTHONOTARY
APPEARANCES:
| Mr. Keith Oliver for Plaintiff |
| Mr. Robert McDonell for Defendant |
SOLICITORS OF RECORD:
Oliver, Arnold & Company
| Coquitlam, BC for Plaintiff |
Farris, Vaughan, Wills & Murphy
| Vancouver, BC for Derfendant |
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