Most lawyers know that a judge who presides over a pre-trial conference is prohibited from presiding over the trial of the action or the hearing of an application. Generally, this is to protect any settlement discussions that may have taken place at the pre-trial. Or, as Carthy J.A. stated in Bell Canada v Olympia & York Developments Ltd. (1994), 17 OR (3d) 135(CA) at pp. 144-45 the prohibition also protects the integrity and usefulness of the pre-trial conference system:
Pre-trials were designed to provide the court with an opportunity to intervene with the experience and influence of its judges to persuade litigants to reach reasonable settlements or refine the issues. None of that would be possible without assurance to the litigants that they can speak freely, negotiate openly, and consider recommendations from a judge, all without concern that their positions in the litigation will be affected.
It’s been unclear to some if this prohibition only stops pre-trial judges from then presiding over trials and hearings in the same matter, or whether it extended to subsequent summary judgment motions as well.
This was the issue the Ontario Court of Appeal tackled in the recent case of RBC v. Hussain. Specifically, whether, absent the written consent of the parties, do rules 50.09 and 50.10 of the Rules of Civil Procedure RRO 1990, Reg. 194 prohibit a judge who conducts a pre-trial conference from presiding on a summary judgment motion? The short answer: Yes.
The bank issued a statement of claim against the appellant based on amounts owing on various loan facilities. A judge conducted a pre-trial conference on December 1, 2014. Almost a full year later in November 2015 the same judge heard and granted the bank’s summary judgment motion and awarded the bank its full claim. The appellant appealed on several grounds but the main issue being whether the pre-trial judge was prohibited from hearing the motion.
RULES 50.09 & 50.10(1)
Subject to certain exceptions, rule 50.09 prohibits “communication” to a judge presiding on a hearing or motion “with respect to any statement made at a pre-trial conference”.
Rule 50.10(1) prohibits a pre-trial judge from presiding “at the trial of the action or the hearing of the application, except with the written consent of all parties”.
These Rules were last amended after the “Osborne Report” in 2010. The Osborne Report recognized that the Rules were aimed at the important purpose of protecting settlement discussions at pre-trial. However, the report also concluded that the parties should be able to consent to a pre-trial judge hearing the proceeding because of efficiencies (i.e. judge being familiar with facts, expertise, continuity etc.) Subsequently the Rules were amended to allow the parties to provide written consent to allow a pre-trial judge to also preside over the trial or hearing.
On appeal the bank acknowledged that the motion judge also presided over a pre-trial in the proceeding, but submitted that the judge was not prohibited from doing so as the situation did not “fall squarely” within the prohibition in the Rules. The bank argued that nothing was communicated to the motion judge about the pre-trial – rather he presided over it (so rule 59.09 did not apply) and the proceeding under the appeal was not a trial or application (so rule 59.10 did not apply). The bank also argued that the appeal should be dismissed as the appellant never raised this issue at the motion and that there was no miscarriage of justice because the bank had such a strong and overwhelming case.
The Court of Appeal was not buying it and here’s why: Rule 50.09 reflects the intention that a judge hearing a motion in a proceeding be insulated from knowledge of statements made at a pre-trial conference: “It is designed to reassure litigants that any information revealed in the pre-trial will not be used against them at a hearing, in order to encourage a full and frank exploration of settlement prospects at an early stage of the proceeding”. If the pre-trial judge is also hearing the motion, the judge is not “insulated” from what occurred at the pre-trial.
Although neither rule 50.09 nor rule 50.10 contains language expressly prohibiting a pre-trial judge from presiding on a summary judgment motion, the rules are to be “liberally construed”. Particularly “with the expanded powers available to motion judges under the amended Rule 20, presiding on a summary judgment motion must be viewed as akin to presiding at a trial or the hearing of an application: see Hyrniak v. Mauldin, 2014 SCC 7 at paras. 36 and 45.”
Furthermore, while in a civil case failure to object to a procedural flaw at the motion would normally be given considerable weight on appeal, the Court found this was not a relevant consideration as Rules 50.09 and 50.10 prohibited the judge from hearing the motion. Also, the strength of the bank’s case had no relevance as well: “In all the circumstances, upholding the result in this case would sanction ignoring the Rules and undermine public confidence in the administration of justice.”
The appeal was granted and the summary judgment motion was set aside.
As the Court noted, this case highlights the need for parties to remind a judge who has been scheduled to dispose of an action or application on the merits that the judge previously presided at the pre-trial conference. Then the judge is in a position to canvass if the parties will provide their written consent for him or her to also preside at the hearing or summary judgment motion as the case may be.
 2016 ONCA 637
 At para. 18
 At para. 19
 At para. 25
 At para. 24
Erin C. Cowling is a freelance litigator, researcher & writer at Cowling Legal Freelance and President and Founder of FLEX LEGAL, a network of freelance lawyers.