It is notable that the court tariff provides for 1 to 5 units for pre-trial or settlement conference or a mini-trial and 1 to 3 units for preparation for same.
Item 17 needs to be amended to provide for a pre-hearing or case management conference.
As to the appropriate number of units, there was some difference in opinion.
Option one was to leave case management conferences at 3 units. Some case management conferences may not warrant more than 3 units.
Option two was to increase the fixed units to 4. One of the reasons for increasing the number of units to 4 was to make it in line with unopposed applications in item 13 since the equivalent of consent orders may arise out of case management. Another reason to increase the number of units to 4 was to encourage claimants to participate in case management.
Option three was to allow more discretion to the board. As indicated above the court tariff permits 1 to 5 units for a variety of pre-trial conferences ranging from simple procedural pre-trial check lists to mini trials. This would give some flexibility to award more costs for a more wide ranging case management.
There is no provision in schedule 2 for units for appraisers to attend a case management conference. It was agreed that there may be no reason for an appraiser to attend many case management conferences where procedural matters were the main focus of attention. See below for further discussion of appraisers' participation under settlement conferences.
2. Provision for costs for settlement conferences
Currently item 22 in schedule 1 of the Tariff for legal costs provides for 15 units a day for a maximum of 60 units for negotiations that actually produce a settlement.
It was suggested that in order to encourage parties to participate in settlement negotiations that there be some provision for providing costs for settlement conferences where full settlement was not the result. As indicated above, the court tariff provides for 1 to 5 units for pre-trial or settlement conference or a mini-trial and 1 to 3 units for preparation. Unlike case management conferences most settlement conferences would be more than 2 1/2 hours and therefore the number of units would be for each full day of attendance.
Option one would be to have a separate provision for settlement conferences with for example, 5 units per day, and preparation at 3 units per day of attendance. This provision could be subject to the number of units rising to 15 units per day (including preparation?) for a settlement conference if the case actually settles.
Option two would be to have one provision to include both case management and settlement conferences with discretion to the board to award 1 to 5 units and 1 to 3 units for preparation. Again this provision could be subject to the number of units rising to 15 units per day for a settlement conference if the case actually settles.
During discussion at the ADR meeting it was suggested that more units should be provided for mediation, possibly a range of 1 to 10 units.
With respect to appraisers, two of the sub-committee members voiced the view that they had participated in or organized meetings between appraisers or with appraisers that had proved very useful in settling the case. It was suggested that appraisers be entitled to the same number of units as counsel for attending settlement conferences where there had been some agreement for their participation.
3. Use of costs to enforce case management
While adding items in the existing tariff schedules for claimants' costs is relatively uncontentious, using costs to enforce case management, especially if claimants have the risk of paying the respondent's costs, will be more controversial. There was agreement that if the risk was limited to occasions where the claimant had behaved irresponsibly or unreasonably in failing to meet directions or orders of the board that this would be less controversial.
If a party fails without adequate reason to meet deadlines for procedural steps that were directed or ordered at a case management conference, for example, the recommendation was that they should lose any costs for that case management conference. Clearly this implies that the party is a claimant. We did not discuss what happens if a respondent fails to meet a deadline. I assume that at a minimum the claimant would be entitled to their costs.
It was also recommended that we draft the rule so that the claimant faced the chance of paying the respondent's costs for a case management conference that was wasted because of the claimant's non-compliance.
The Ontario paper on possible options for costs for tribunals contains a statement about the purpose of costs that might be of assistance for the board's proposed rules about costs for case management. The Ontario paper suggested including some narrative reflecting the substance of this statement.
The purpose of costs is to discourage irresponsible conduct by a party and thereby ensure respect for the tribunal's process.
We did not get a chance to discuss whether it made sense to use costs more generally following settlement conferences in a similar way to Calderbank letters. The board has permitted Calderbank letters as a factor to be considered where it has discretion on awarding costs. However, on the facts in the cases where Calderbank letters have been considered to date, the board has not yet relied on a Calderbank letter to reduce costs.
4. Statutory amendments
If the amendment is made for claimants to face the risk of paying the respondent's costs in limited situations arising out of case management conferences, there would need to be an amendment to section 45 of the Act.
If a claim partly settles and part of the advance payment was for the settled claim then it might be more difficult for the claimant to meet the 115% minimum under section 45(4) (or the 90% maximum in section 46(4)). This might act as a disincentive for claimants to settle part of the claim.
If these sections were amended so that both sides of the equation were comparing the same claims it would preserve the intent of sections 45(4) and 46(4) and eliminate any impediment to partial settlement. For example, if a disturbance damage claim settled then any advance payment to do with that disturbance damage would be excluded.
A possible amendment of section 45(4) might be:
45(4) If the compensation awarded to an owner, other than for business losses, is greater than 115% of the amount paid by the expropriating authority under section 20(1) and (12) or otherwise, excluding payments that had been made by the expropriating authority in respect of claims that were settled and therefore not considered by the board, the authority must pay the owner his or her costs.
A similar amendment could be made to section 46(4).
This assumes that any advance payment by an authority allocates sums to different claims.
We also discussed possible amendments to section 47. Section 47 allows for penalty interest provisions for unreasonable delay by either party and there is an ability to add costs to this provision.
