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Appeal Court Dicta

Civil Litigation - Pre-trial Conferences

. Sosnov v. J&H Freiberg

In Sosnov v. J&H Freiberg (Div Ct, 2021) the Divisional Court reverses an order made in a pre-trial conference to appoint an expert for the court:
11. The purpose of a pre-trial is to provide an opportunity to settle any or all issues without a trial and, with respect to any issues not settled, to provide orders or directions “to assist in the just, most expeditious and least expensive disposition of the proceeding” (rule 50.01).

12. As a result, a pre-trial judge has a broad discretion to, amongst other things, make such orders as he or she considers necessary or advisable with respect to the conduct of the proceedings (rule 50.07).

13. Rule 52.03(1) provides that a judge may, at any time, on motion by a party or on his or her own initiative, appoint one or more experts to inquire into and report “on any question of fact or opinion relevant to an issue in the action.”

14. While we recognise that not every order or direction made in a pre-trial proceeding will require reasons, in the present proceeding where the appellants were opposed to the appointment of a court expert (and the plaintiffs to having to pay for it), in our view, it was incumbent on the Pre-Trial Judge to provide reasons for the Order. She did not.

15. Further, the absence of reasons prevents meaningful appellate review: R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34. In the circumstances, the failure of the Pre-Trial Judge to provide reasons is an error.

16. Further, the Pre-Trial Judge erred in our view, in appointing an expert to determine the matters in issue as well as issues not raised by the parties. The role of a court appointed expert is to assist the court in understanding the evidence within their area of expertise. It is not to investigate, advance possible theories and state, as conclusions of fact, opinions based on matters not advanced in evidence: Phillips v. Ford Motor Co. of Canada, 1971 CanLII 389 (ON CA), [1971] O.J. No. 1564 (C.A.).

17.That, however, is exactly what the Order does. It requires the expert to investigate, weigh evidence and explore any other scenario which in his view would be relevant to the understanding of liability. In so doing, the Order usurps the role of the trier of fact and the parties right to present the case as they see fit.
. Royal Bank of Canada v. Hussain

In Royal Bank of Canada v. Hussain (Ont CA, 2016) the Court of Appeal expounds on the meaning of Rules 50.09 and 50.10, which read as follows:

50.09 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. O. Reg. 438/08, s. 47.


50.10 (1) A judge who conducts a pre-trial conference shall not preside at the trial of the action or the hearing of the application, except with the written consent of all parties. O. Reg. 438/08, s. 47.

Conference Before Trial Judge

(2) Subrule (1) does not prevent a judge before whom a proceeding has been called for hearing from holding a conference either before or during the hearing to consider any matter that may assist in the just, most expeditious and least expensive disposition of the proceeding without disqualifying himself or herself from presiding at the hearing.
The context was that a judge that held a pre-trial conference also heard and ruled on the motion for the summary judgment which was being appealed. The defendant (plaintiff-by-counterclaim) was successful, the court clarifying that:
[18] Rule 50.09 reflects the intention that a judge hearing a motion in a proceeding should be insulated from knowledge of statements made at a pre-trial conference. It is designed to reassure litigants that any information revealed in the pre-trial will not be used against them at a hearing, in order to encourage a full and frank exploration of settlement prospects at an early stage of the proceeding.

[19] Having regard to rule 50.10(1), absent written consent from the parties, a judge who conducts a pre-trial should not be the judge who determines the merits of the issues in a proceeding. Particularly with the expanded powers available to motion judges under the amended Rule 20, presiding on a summary judgment motion must be viewed as akin to presiding at a trial or the hearing of an application: see Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87, at paras. 36 and 45. The rationale for prohibiting communications to a judge about statements at a pre-trial and for prohibiting a pre-trial judge from presiding at a hearing that could determine some or all of the issues in a proceeding is well-established and well-known. As explained in the Osborne Report, it is to protect settlement discussions at a pre-trial conference.

[20] And as stated by Carthy J.A. in Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.), at pp. 144-45, the prohibition also protects the integrity and usefulness of the pre-trial conference system:
Pre-trials were designed to provide the court with an opportunity to intervene with the experience and influence of its judges to persuade litigants to reach reasonable settlements or refine the issues. None of that would be possible without assurance to the litigants that they can speak freely, negotiate openly, and consider recommendations from a judge, all without concern that their positions in the litigation will be affected.
[21] Although neither rule 50.09 nor rule 50.10 contains language expressly prohibiting a pre-trial judge from presiding on a summary judgment motion, the rules are to be “liberally construed”, and where matters are not provided for in the rules, “the practice shall be determined by analogy to them”: rules 1.04(1) and (2).

[22] Having regard to these factors, rules 50.09 and 50.10 must be read as prohibiting a judge who conducts a pre-trial conference from presiding on a summary judgment motion in the action, except with all parties’ written consent.


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