The purpose of a pre-trial conference is to provide parties with a forum to obtain an appraisal from a judge of their respective positions on the outstanding issues between them, and provide an opportunity to openly negotiate a resolution of these issues. The ability of the parties to speak freely without concern that their positions in the litigation will be prejudiced is protected by Rules 50.09 and 50.10 of the Rules of Civil Procedure, which provide that (i) the statements made at a pre-trial conference cannot be used in the proceedings, and (ii) the pre-trial conference judge cannot preside at the trial of the matter:
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.
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.
(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 Rules of Civil Procedure do not expressly prohibit the pre-trial conference judge from hearing a subsequent summary judgment motion in the same matter. In Royal Bank of Canada v. Hussain, 2016 ONCA 637, the Ontario Court of Appeal recently held that such a prohibition should be implied into the Rules to ensure the continued productivity of pre-trial conferences.
The Proceedings in Hussain
In Hussain, summary judgment was granted in favour of the Plaintiff on December 18, 2015 by the same judge that had presided over a pre-trial conference in the matter a year prior on December 1, 2014. The Defendants did not object to the judge hearing the motion at the time. They subsequently appealed the decision, arguing that the pre-trial conference judge was precluded from hearing the motion.
Rules 50.09 and 50.10 Do Not Strictly Apply
The Ontario Court of Appeal recognized that Rules 50.09 and 50.10 do not strictly apply to these circumstances:
- Rule 50.09 only prohibits the communication of statements made at the pre-trial conference in subsequent proceedings. Nothing was communicated to the motions judge about the pre-trial conference at the summary judgment motion, he had just presided over the conference.
- Rule 50.10 only prohibits a pre-trial conference judge from presiding at the trial of the matter. The prohibition does not include motions, whether summary judgment or otherwise.
Prohibition Implied Into Rules
The Court of Appeal recognized that the policy rationale for these Rules (to ensure that parties are free to engage in without prejudice discussions at pre-trial conferences) clearly supports that they were intended to apply to these circumstances as well. Rule 50.10 was intended to prohibit the pre-trial conference judge from being the one who determines the merits of the issues in a proceeding. In light of the expanded fact-finding powers available under Rule 20.04, a summary judgment motion “must be viewed as akin to presiding at a trial or the hearing of an application.”
Accordingly, the Court relied on Rule 1.04(2), which states that “where matters are not provided for in these rules, the practice shall be determined by analogy to them”, to imply the following rule into the Rules of Civil Procedure:
… a judge who conducts a pre-trial conference [is prohibited] from presiding on a summary judgment motion in the action, except with all parties’ written consent.
Scope of the Implied Prohibition
While the Court of Appeal in Hussain restricted the prohibition to subsequent summary judgment motions, there is an arguable case that the prohibition should also apply to other subsequent motions that may dispose of an action or application, such as:
- Rule 21.01(1)(a) motions for the determination of a question of law before trial;
- Rule 21.01(1)(d) abuse of process motions; and
- Rule 24.01 motions to dismiss an action for delay.
In addition to information about the merits of the proceeding, the pre-trial conference judge may be privy to information about the parties and their conduct both within and outside the proceedings. This information may be relevant to the motions listed above. Parties in future cases may attempt to extend Hussain by arguing that the policy rationale for Rules 50.09 and 50.10 is best served by prohibiting a pre-trial conference judge from hearing all subsequent motions that may dispose of the proceeding.
Parties that have attended a pre-trial conference and are subsequently moving for summary judgment would be well-advised to take steps to limit the chances that they will appear before the pre-trial conference judge by notifying the Registrar that the motion cannot proceed before this judge at the time of booking. If the motion happens to be scheduled before this judge, the moving party should raise the issue with opposing counsel and request written consent to proceed. If opposing counsel is not willing to consent, the motion should be adjourned.
The moving party should also consider taking these steps in other types of subsequent motions out of caution that the prohibition in Hussain may be extended.
The onus appears to be solely on the moving party to take these steps. If the motion proceeds and the moving party is successful, the responding party can rely on this implied prohibition to have the result overturned, as in Hussain.
Royal Bank of Canada v. Hussain, 2016 ONCA 637
Date of Decision: August 22, 2016
 Royal Bank of Canada v. Hussain, 2016 ONCA 637 at para. 19.
 Ibid at para. 22.