Pre-Trial Conferences in Ontario Civil Litigation: What Happens and Why It Matters

If mediation did not resolve your Ontario civil case, the next significant milestone before trial is the pre-trial conference — a meeting with a judge that is unlike anything most litigants expect. The pre-trial judge is not the judge who will hear the trial, and the conference is not a mini-trial. But what the pre-trial judge says can be more persuasive than almost anything else in the litigation.

This guide explains the purpose of a pre-trial conference, what happens in the room, what the judge can say (and not say), and how to make the most of the opportunity.

What Is a Pre-Trial Conference?

A pre-trial conference is a court-ordered meeting held before trial between the parties (or their counsel) and a judge of the Superior Court of Justice. It is governed by the Rules of Civil Procedure and typically takes place after discovery is complete and the case is ready to proceed to trial.

The conference has two primary purposes:

1. Settlement: exploring whether the parties can resolve the case without trial
2. Trial management: narrowing the issues, confirming trial readiness, and planning the logistics of the trial

When Does the Pre-Trial Happen?

The pre-trial conference is scheduled after the parties have set the case down for trial (or when the court schedules it, depending on jurisdiction and procedure track). Under the Simplified Procedure (for claims at or below $200,000 as of writing — verify), pre-trial conferences follow a similar structure.

In busy jurisdictions like Toronto, getting a pre-trial conference date can take time. Once you have a date, prepare well — you will not get a second chance.

Who Attends?

All parties and their counsel must attend the pre-trial conference. Under the Rules of Civil Procedure, the parties themselves (not just lawyers) must attend or be available — someone with actual authority to settle must be present or reachable.

If a party is unavailable without good reason, or if counsel attends without a client who has authority to settle, the pre-trial judge may adjourn the conference and award costs against the party at fault.

The Pre-Trial Brief

Before the conference, each party delivers a pre-trial brief to the judge and opposing party. A good pre-trial brief typically includes:

• A concise summary of the facts
• The issues in dispute
• Each party's position and evidence on those issues
• Settlement history (what offers have been made)
• Estimated trial length
• A list of witnesses and what each will prove
• Any outstanding procedural issues

A pre-trial brief is advocacy. But effective advocacy at a pre-trial requires candour — a judge who senses you are overselling your case will discount everything you say.

What the Pre-Trial Judge Can Say

Candid Assessment of the Case

The pre-trial judge will often give each side their frank, frank opinion of the case. This is the most valuable thing about the pre-trial conference. An experienced judge who has read both parties' briefs and heard brief oral summaries may say things like:

• "On this issue, I think plaintiff's argument is very strong."
• "I am skeptical that this damages theory will succeed."
• "This case should settle. Here is a range I would consider reasonable."

These assessments are not binding. The pre-trial judge does not decide anything. But they carry enormous practical weight. A party who hears a neutral judge say their case is weak — even informally — usually listens.

Narrowing the Issues

The judge may also help the parties identify which issues are genuinely in dispute and which can be resolved by agreement. Narrowing the issues before trial reduces the trial's length and cost. Sometimes, what looked like a five-day trial can be trimmed to two days simply by identifying the real points of contention.

Trial Management Orders

The judge can make orders regarding:

• Admissibility of evidence
• Scope of expert evidence
• Order of witnesses
• Use of agreed statements of fact

These orders streamline the trial and prevent procedural ambushes.

Settlement at Pre-Trial

A significant number of civil cases that have not settled at mediation settle at or shortly after the pre-trial conference. The judge's assessment of the case is often the catalyst. Parties who were far apart in settlement negotiations suddenly find common ground after a neutral observer gives them a candid view.

If the parties reach a settlement at the pre-trial, it is recorded and signed before anyone leaves. Minutes of settlement or a consent order gives the agreement legal force.

If no settlement is reached, the judge issues a pre-trial conference endorsement — a brief written record of what was discussed, what was agreed, and any orders made. This document is filed on the court record.

The Pre-Trial Judge Cannot Hear the Trial

This is an important rule: the judge who conducts your pre-trial conference cannot be the judge who hears your trial (absent consent of the parties). This allows the pre-trial judge to speak candidly about the merits without having those comments influence the trial.

If the parties consent (which can be useful in certain circumstances), the same judge can do both — but this is the exception.

Frequently asked questions