Scheduling the Case Conference

After the Form 8 Application and the Form 10 Answer, and all supporting court forms, have been served and filed, and after the MIP, the next step in the case is the Case Conference. A judge meets with both parties (and their lawyers, if any) at a Case Conference to explore the possibility of settling all or some of the issues in the case. If that’s not possible, the judge can make procedural orders such as scheduling a motion date or requiring the parties to disclose to each other certain relevant documents by a fixed deadline. In rare cases, a party can bring a motion before a Case Conference but usually not so it’s important to move the case forward by booking the case conference.

It’s easy to get a Case Conference scheduled in Provincial Court because on the day that the Application is issued, the court sets a “First Court Appearance” date and hand prints that date on to the first page of the Form 8 Application. Both parties attend the First Court Appearance before a Deputy Registrar who finds a date when a judge, the parties and their lawyers if any are all available for a Case Conference. Everyone leaves a First Court Appearance with the Case Conference date set.

Cases in the Superior Court of Justice Family Court Branch (like Newmarket and Oshawa) follow the same procedure of holding a First Court Appearance at which a Case Conference date is set BUT ONLY if neither party makes a claim for property in the Form 8 Application or Form 10 Answer. A no-property- claims case in Superior Court of Justice Family Court Branch is a “fast track” case and fast-track cases get First Court Appearances. If one of the parties in a Unified Family Court case makes a property claim, the case becomes a “standard track” case. There is no First Court Appearance and one of the parties must take the initiative to set up a Case Conference.

In Superior Court of Justice cases (i.e. all 393 University cases plus some 7755 Hurontario cases), there is no First Court Appearance. A Case Conference only gets scheduled when one of the parties makes it happen.

The party who wants to schedule a Case Conference needs to find out the dates when a judge is available. Each courthouse schedules its case conferences on a certain day or days of the week. A person called the Case Conference Coordinator (or sometimes the Trial Coordinator) manages the scheduling process. Usually the court is fully booked for several weeks or even months in advance so it’s important to find out when the court has “available dates” and then gather several free dates.

The party then communicates the set of available to dates to the other side and requests several “clear dates.” Then the party visits the court or sends a fax to the Case Conference Coordinator to ask the court to set up a Case Conference on any of the clear dates. The Coordinator will reply, often by fax, with the date and time of the Case Conference.

Up to this point, the scheduling has been informal. To lock in the Case Conference date, the party needs to prepare a Form 17 Conference Notice, serve it on the other party, prepare an Affidavit of Service and file the Form 17 and the Affidavit of Service at the court office. A party who fails to serve and file a Form 17 will sooner or later lose the Case Conference date.

Tips on Scheduling Case Conferences

The Case Conference Coordinator’s job is to make the best use of a scarce resource – a judge’s time – by making sure that Case Conferences are scheduled only for matters where both parties are able to attend court at the scheduled time. The Coordinator does not want to have a judge available for a Case Conference in a timeslot where the scheduling party does not follow through or the other party has a conflicting appointment.

1. Most Case Conference Coordinators will not schedule a Case Conference unless “the date has been cleared” with the other side, i.e., unless the scheduling party can say, “I’ve checked with the other side and they are free on these dates.” Trying to pick the date of a Case Conference unilaterally and not worrying whether the other side is available is not going to work for anyone.

2. There is a period of time, perhaps one or two weeks, between the day the scheduling party finds out whent the court has available dates and the day the scheduling party can get back to the Case Conference Coordinator with dates cleared by the other side. During this period, parties in other cases are taking the cleared dates. The Case Conference Coordinator has no obligation to hold available dates while the scheduling party tries to clear them with the other side. This means that the scheduling party needs to forecast which dates will still be available by the time it is able to get back to the Case Conference Coordinator with cleared dates. The scheduling party should propose lots of dates to the other side, spread over a period of a month or more, in order to maximize the chance of getting a date when the other side and a judge will both be available.

Example: if a court books Case Conferences only on Wednesdays and the first available date is September 7, the scheduling party might propose to the other side “September 7, 14, 28; October 3, 10, 17 and 24.” Note that September 21 was left off the list (presumably because of an important other commitment) but dates spread over a month and a half were given. If the other side is represented by a lawyer, there may only be a few suitable dates, e.g. “September 7, October 3 and October 24” because the lawyer has a busy schedule of court dates in other matters. After learning what dates the lawyer on the other side has free, the scheduling party then quickly contacts the Case Conference Coordinator with those dates. Continuing our example, by this point September 7 may be gone but October 3 and 24 are still free so the Coordinator chooses the earlier date and schedules the Case Conference for October 3.

The scheduling party needs to inform the other side immediately (even if it’s done informally for now, without a Form 17 Conference Notice) especially if there is a lawyer on the other side to make sure that the lawyer does not schedule something else for October 3. The lawyer will try to keep all of the cleared dates open for a reasonable period but not for too long. Serving and filing the Form 17 Notice promptly then locks in this date. After the Form 17 Notice has been served, if the other side tries to get out of the date it will have a problem with the court rather than with the scheduling party.