PART 9Case Management and Dispute Resolution Services (continued)
Dispute Resolution Services (continued)
387 A dispute resolution conference shall be conducted by a case management judge or prothonotary assigned under paragraph 383(c), who may
(a) conduct a mediation, to assist the parties by meeting with them together or separately to encourage and facilitate discussion between them in an attempt to reach a mutually acceptable resolution of the dispute;
(b) conduct an early neutral evaluation of a proceeding, to evaluate the relative strengths and weaknesses of the positions advanced by the parties and render a non-binding opinion as to the probable outcome of the proceeding; or
(c) conduct a mini-trial, presiding over presentation by counsel for the parties of their best case and rendering a non-binding opinion as to the probable outcome of the proceeding.
388 Discussions in a dispute resolution conference and documents prepared for the purposes of such a conference are confidential and shall not be disclosed.
Marginal note:Notice of settlement
389 (1) Where a settlement of all or part of a proceeding is reached at a dispute resolution conference,
(a) it shall be reduced to writing and signed by the parties or their solicitors; and
(b) a notice of settlement in Form 389 shall be filed within 10 days after the settlement is reached.
Marginal note:Report of partial settlement
(2) Where a settlement of only part of a proceeding is reached at a dispute resolution conference, the case management judge shall make an order setting out the issues that have not been resolved and giving such directions as he or she considers necessary for their adjudication.
Marginal note:Notice of failure to settle
(3) Where no settlement can be reached at a dispute resolution conference, the case management judge shall record that fact on the Court file.
Marginal note:Stay of proceedings
390 On motion, a case management judge or a prothonotary assigned under paragraph 383(c) may, by order, stay a proceeding, including a proceeding that has previously been stayed, for a period of not more than six months, on the ground that the parties have undertaken to refer the subject-matter of the proceeding to an alternative means of dispute resolution, other than a dispute resolution conference referred to in rule 386.
Marginal note:Case management judge not to preside at hearing
391 A case management judge who conducts a dispute resolution conference in an action, application or appeal shall not preside at the hearing thereof unless all parties consent.
Marginal note:Disposition of hearing
392 (1) The Court may dispose of any matter that is the subject-matter of a hearing by signing an order.
Marginal note:Effective time of order
(2) Unless it provides otherwise, an order is effective from the time that it is endorsed in writing and signed by the presiding judge or prothonotary or, in the case of an order given orally from the bench in circumstances that render it impracticable to endorse a written copy of the order, at the time it is made.
393 The Court may deliver reasons for judgment
(a) orally from the bench at the conclusion of the hearing of a proceeding; or
(b) after having reserved judgment at the conclusion of a hearing, by depositing in the Registry written reasons, signed by the judge or prothonotary who delivered them.
Marginal note:Drafting of order
394 (1) Where the Court gives reasons, it may direct one of the parties to prepare for endorsement a draft order to implement the Court’s conclusion, approved as to form and content by the other parties or, where the parties cannot agree on the form and content of the order, to bring a motion for judgment in accordance with rule 369.
Marginal note:Pronouncement of judgment
(2) On the return of a motion under subsection (1), the Court shall settle the terms of and pronounce the judgment, which shall be endorsed in writing and signed by the presiding judge or prothonotary.
Marginal note:Copies to be sent
395 (1) Subject to subsection 36(3), the Administrator shall send without delay a copy of every order made and of any reasons given other than in open court to all parties
(a) by registered mail;
(b) by electronic means, including facsimile and electronic mail; or
(c) by any other means, as directed by the Chief Justice, likely to bring the order and any reasons to the attention of the party.
Marginal note:Proof of receipt
(2) If an order and any reasons are transmitted by electronic means, the Administrator shall confirm receipt by the party and place proof of that receipt on the Court file.
- SOR/2010-177, s. 6
Marginal note:Recording of orders
396 Every order shall be recorded by the Administrator forthwith after it is made.
Marginal note:Motion to reconsider
397 (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
Marginal note:Stay of order
398 (1) On the motion of a person against whom an order has been made,
(a) where the order has not been appealed, the court that made the order may order that it be stayed; or
(b) where a notice of appeal of the order has been issued, a judge of the court that is to hear the appeal may order that it be stayed.
(2) As a condition to granting a stay under subsection (1), a judge may require that the appellant
(a) provide security for costs; and
(b) do anything required to ensure that the order will be complied with when the stay is lifted.
Marginal note:Setting aside of stay
(3) A judge of the court that is to hear an appeal of an order that has been stayed pending appeal may set aside the stay if the judge is satisfied that the party who sought the stay is not expeditiously proceeding with the appeal or that for any other reason the order should no longer be stayed.
- SOR/2004-283, s. 40
Marginal note:Setting aside or variance
399 (1) On motion, the Court may set aside or vary an order that was made
(a) ex parte; or
(b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding,
if the party against whom the order is made discloses a prima facie case why the order should not have been made.
Marginal note:Setting aside or variance
(2) On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was discovered subsequent to the making of the order; or
(b) where the order was obtained by fraud.
Marginal note:Effect of order
(3) Unless the Court orders otherwise, the setting aside or variance of an order under subsection (1) or (2) does not affect the validity or character of anything done or not done before the order was set aside or varied.
Awarding of Costs Between Parties
Marginal note:Discretionary powers of Court
400 (1) The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.
(2) Costs may be awarded to or against the Crown.
Marginal note:Factors in awarding costs
(3) In exercising its discretion under subsection (1), the Court may consider
(a) the result of the proceeding;
(b) the amounts claimed and the amounts recovered;
(c) the importance and complexity of the issues;
(d) the apportionment of liability;
(e) any written offer to settle;
(f) any offer to contribute made under rule 421;
(g) the amount of work;
(h) whether the public interest in having the proceeding litigated justifies a particular award of costs;
(i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding;
(j) the failure by a party to admit anything that should have been admitted or to serve a request to admit;
(k) whether any step in the proceeding was
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(l) whether more than one set of costs should be allowed, where two or more parties were represented by different solicitors or were represented by the same solicitor but separated their defence unnecessarily;
(m) whether two or more parties, represented by the same solicitor, initiated separate proceedings unnecessarily;
(n) whether a party who was successful in an action exaggerated a claim, including a counterclaim or third party claim, to avoid the operation of rules 292 to 299;
(n.1) whether the expense required to have an expert witness give evidence was justified given
(i) the nature of the litigation, its public significance and any need to clarify the law,
(ii) the number, complexity or technical nature of the issues in dispute, or
(iii) the amount in dispute in the proceeding; and
(o) any other matter that it considers relevant.
Marginal note:Tariff B
(4) The Court may fix all or part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to, any assessed costs.
Marginal note:Directions re assessment
(5) Where the Court orders that costs be assessed in accordance with Tariff B, the Court may direct that the assessment be performed under a specific column or combination of columns of the table to that Tariff.
Marginal note:Further discretion of Court
(6) Notwithstanding any other provision of these Rules, the Court may
(a) award or refuse costs in respect of a particular issue or step in a proceeding;
(b) award assessed costs or a percentage of assessed costs up to and including a specified step in a proceeding;
(c) award all or part of costs on a solicitor-and-client basis; or
(d) award costs against a successful party.
Marginal note:Award and payment of costs
(7) Costs shall be awarded to the party who is entitled to receive the costs and not to the party’s solicitor, but they may be paid to the party’s solicitor in trust.
- SOR/2002-417, s. 25(F)
- SOR/2010-176, s. 11
Marginal note:Costs of motion
401 (1) The Court may award costs of a motion in an amount fixed by the Court.
Marginal note:Costs payable forthwith
(2) Where the Court is satisfied that a motion should not have been brought or opposed, the Court shall order that the costs of the motion be payable forthwith.
Marginal note:Costs of discontinuance or abandonment
402 Unless otherwise ordered by the Court or agreed by the parties, a party against whom an action, application or appeal has been discontinued or against whom a motion has been abandoned is entitled to costs forthwith, which may be assessed and the payment of which may be enforced as if judgment for the amount of the costs had been given in favour of that party.
Marginal note:Motion for directions
403 (1) A party may request that directions be given to the assessment officer respecting any matter referred to in rule 400,
(a) by serving and filing a notice of motion within 30 days after judgment has been pronounced; or
(b) in a motion for judgment under subsection 394(2).
Marginal note:Motion after judgment
(2) A motion may be brought under paragraph (1)(a) whether or not the judgment included an order concerning costs.
Marginal note:Same judge or prothonotary
(3) A motion under paragraph (1)(a) shall be brought before the judge or prothonotary who signed the judgment.
Marginal note:Liability of solicitor for costs
404 (1) Where costs in a proceeding are incurred improperly or without reasonable cause or are wasted by undue delay or other misconduct or default, the Court may make an order against any solicitor whom it considers to be responsible, whether personally or through a servant or agent,
(a) directing the solicitor personally pay the costs of a party to the proceeding; or
(b) disallowing the costs between the solicitor and the solicitor’s client.
Marginal note:Show cause by solicitor
(2) No order under subsection (1) shall be made against a solicitor unless the solicitor has been given an opportunity to be heard.
Marginal note:Notice to client
(3) The Court may order that notice of an order against a solicitor made under subsection (1) be given to the solicitor’s client in a manner specified by the Court.
Assessment of Costs
Marginal note:Assessment by assessment officer
405 Costs shall be assessed by an assessment officer.
Marginal note:Obtaining appointment
406 (1) A party who is entitled to costs may obtain a notice of appointment for assessment by filing a bill of costs, a copy of the order or other document giving rise to the party’s entitlement to costs and any reasons, including dissenting reasons, given in respect of that order.
Marginal note:Notice of appointment
(2) A notice of appointment for assessment and the bill of costs to be assessed shall be served on every other interested party at least 10 days before the date fixed for the assessment.
- SOR/2006-219, s. 15
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