Pre-Trial – Litigation #11

Before trial preparation truly begins, parties must address a range of procedural matters that set the stage for how the case will proceed. These may not grab headlines, but they play a crucial role in shaping the path to trial. Below is a brief overview of some of the most commonly encountered pre-trial issues in Ontario civil litigation:

• Place of Trial (Rule 46)
• Jury Notice (Rule 47)
• Listing for Tria  (Rule 48)
• Admissions (Rule 51)
• Requests to Admit (Rule 51.02(1))
• Mandatory Mediation (Rule 24.1)

Pre-trial conferences, governed by Rule 50 of Ontario’s Rules of Civil Procedure, serve an essential function in civil litigation. They provide an opportunity for the parties to resolve some or all issues without a formal hearing and to get assistance from a judge in achieving a fair, efficient, and cost-effective resolution to the case. Even when a full settlement is not reached, the conference helps narrow the issues and streamline the trial process.

Timing and Scheduling
A pre-trial conference must be scheduled within 180 days after the case is set down for trial. The first pre-trial conference is always conducted by a judge, who will explore the possibility of settlement and review trial readiness. If a second pre-trial is necessary, the first judge typically does not continue with settlement discussions. Instead, they may refer the matter to another judge or recommend mediation.

Pre-Trial Brief and Filing Requirements
Each party is required to file a pre-trial conference brief, which must outline:

• the nature of the proceeding (e.g. contract dispute, personal injury claim)
• each party’s position on the key issues
• a list of witnesses likely to be called
• estimated time required for each witness’s testimony

This information helps the judge assess the trial’s complexity and assist the trial coordinator in planning the trial logistics. For example, the court must consider:

• how many days the trial will take
• how many court staff are needed
• whether an interpreter or bilingual judge is required
• any special security concerns
• whether the parties require anonymity, which could lead to a sealed courtroom

The pre-trial process also includes reviewing what steps still need to be completed before trial and establishing estimated timelines for those steps.

What the Court Considers – Rule 50.06
Under Rule 50.06, the court may consider a wide range of matters at the pre-trial conference, including:

• the possibility of settlement
• simplifying issues for trial
• admissions that may reduce the time required
• the procedure to be followed at trial
• any other matter that may help ensure the trial proceeds smoothly and fairly

In short, the pre-trial conference is a vital checkpoint in the litigation process. It ensures that both parties are organized, that the trial judge has the information needed to manage the case efficiently, and that every reasonable effort has been made to avoid the cost and time of a full trial.

When trial approaches, one of the most critical phases of litigation is:

1. identifying what issues are in dispute
2. what must be proven, and
3. how that evidence will be presented.

While documentary evidence and agreed facts can assist, live witness testimony remains the cornerstone of a civil trial.

Selecting Witnesses Strategically
Witness selection is guided by the key issues in the case, whether legal or factual, and by the need to establish or refute each element of a claim or defence. In simplified procedure matters under Rules 76.03(2)-(3), witness selection becomes even more strategic due to streamlined timelines and procedural limitations.

The choice of witnesses lies with the parties and their counsel. Judges may offer suggestions during pre-trial proceedings, but the final decision depends on the overall case strategy and client instructions.

Important considerations when selecting witnesses include:

• Credibility and Demeanour:
  • Will the witness appear honest and reliable to a trial judge?
• Capacity to Testify:
  • Is the witness emotionally and mentally prepared for cross-examination? Special care must be taken with vulnerable witnesses, such as those suffering from PTSD.
• Independence:
  • Are they testifying voluntarily and free from undue influence?
• Prior Statements:
  • Any public statements, including those on social media, must be reviewed in advance, as past conduct may impact credibility in court.
• Net Value to the Case:
  • Every witness carries both potential benefits and risks. Their usefulness must outweigh any anticipated harm.

It is also possible to rely on witnesses affiliated with the opposing party, either by cross-examining them at trial or, in some cases, through a subpoena, for instance, a former employee with damaging internal knowledge.

Strategic Sequence of Presentation
The sequence in which witnesses are called can affect how evidence is received. Some lawyers prefer to begin with the client to establish a strong narrative from the outset; others reserve the client’s testimony for the end, to leave a lasting impression. This decision often depends on the complexity of the case and the overall trial strategy.

Preparing Witnesses for Trial
Thorough preparation is essential. Witnesses must understand the questions they may face and how to deliver clear, truthful testimony. For expert witnesses, additional procedural rules apply, especially under Rules 53.01 and 53.03. Communications with experts are not always protected by solicitor-client privilege, and opposing counsel may be entitled to review written exchanges, making careful drafting essential.

Ensuring Witness Attendance
To compel attendance at trial, witnesses must be served personally with a summons (or subpoena) and paid a daily attendance fee in accordance with the court’s disbursement guidelines. This applies to both friendly and adverse witnesses.

When summoning adverse party witnesses, extra caution is necessary. If their testimony turns out to be unfavourable, it may damage the case rather than support it.

Preserving Evidence Before Trial
There is always a risk that a key witness may be unavailable at trial, for example, due to relocation, illness, or death. To safeguard against such scenarios, parties may preserve testimony in advance.

Under Rule 36 and Rule 39, evidence may be taken before trial by way of examination and recorded for later use, with leave of the court or consent of the parties. In certain circumstances, sworn affidavit evidence may also be admitted.

Though not as persuasive as live testimony, pre-recorded evidence can ensure that vital facts are not lost and still form part of the trial record when needed most.

In many civil trials, expert witnesses play a vital role. Unlike lay witnesses, who provide direct testimony about what they saw or experienced, expert witnesses are called to help the court understand complex technical issues, such as medical diagnoses, engineering failures, financial losses, or professional standards.

The Role and Limits of Experts
Expert witnesses are not meant to decide the case or act as advocates. Their role is to assist the court by offering informed opinions based on specialized knowledge. However, Ontario courts have learned from past mistakes about overreliance on expert evidence. One well-known example is the case of Dr. Charles Smith, a pathologist whose testimony in child autopsy cases was later discredited. His conduct raised serious concerns about experts who appear more as prosecutors than neutral assistants to the court.

This history serves as a reminder: expert evidence must be treated carefully, critically, and within proper limits. Judges rely on experts to clarify, but not to dominate, the decision-making process.

Timelines for Serving Expert Reports
To ensure fairness and transparency, parties must comply with strict timelines for serving expert reports:

• Primary expert reports must be served at least 90 days before the pre-trial conference (under Rule 53.03(1)).
• Responding expert reports, meant to counter the opposing party’s expert, must be served 60 days before the pre-trial conference (under Rule 53.03(2)).

Each report must be signed by the expert and include all the information required by Rule 53.03(2.1), including the expert’s qualifications, instructions received, opinions formed, and the reasons for those opinions.

Admissibility of Expert Evidence
Expert opinions are admissible only if the expert is properly qualified and the evidence meets procedural and substantive requirements. A common challenge arises when the expert has no direct knowledge of the case facts. Most experts rely on a hypothetical set of facts, often supplied by the party calling them.

That said, the courts now recognize “participatory experts”, for example, treating physicians who can offer both factual observations and professional opinions. These witnesses may speak to their direct interaction with the party, such as the severity of an injury or the progression of treatment. Still, the general rule holds: expert witnesses are there to give opinions, not factual testimony, and this distinguishes them from other categories of witnesses.

In civil litigation, an “admission” does not always mean one side has admitted wrongdoing. Legally, it refers more broadly to any statement or fact that a party accepts as true, and which can then be used as evidence in the case. Admissions can come from either side and can significantly streamline trial preparation and shorten proceedings.

What Counts as an Admission?
Admissions can come from a variety of sources, including:

• Pleadings (e.g., a Statement of Defence that acknowledges certain facts)
• Discovery transcripts
• Affidavits
• Even hearsay, in some cases

For example, in a slip-and-fall lawsuit, the city might admit that snow was not cleared from a specific sidewalk, without admitting liability. Or, a plaintiff might admit to being distracted by their phone at the time of the fall. These are both admissions of fact, which can support or weaken a party’s case.

Using Admissions as Trial Evidence
Because admissions are considered reliable, they are frequently used to prove facts without requiring additional witness testimony. They can be strategically incorporated into closing arguments or relied upon when narrowing the factual issues before trial.

Admissions are not limited to formal court filings. A lawyer might rely on statements made during oral discovery or earlier proceedings, especially when those statements are clearly contrary to what is being claimed at trial.

Admissions Through Impeachment
Admissions can also emerge during trial through impeachment, a process used to challenge a witness’s credibility.

Here’s how it works:

• Suppose a witness gives trial testimony that contradicts something they previously said during discovery or in a sworn affidavit.
• The opposing lawyer may confront the witness with the earlier statement and ask them to explain the inconsistency.
• If the witness confirms the earlier version, that confirmation can be treated as an admission, and used as evidence.

This method is especially useful when trying to prove or reinforce key facts in the face of inconsistent testimony.

Agreed Statement of Facts
In addition to individual admissions, parties are encouraged to work together to prepare an agreed statement of facts before trial. These are written agreements, signed by both parties, confirming that certain basic facts are not in dispute.

Agreed facts serve several important purposes:

• They reduce the number of factual findings the judge needs to make.
• They help the court focus on the real points of contention, both legal and factual.
• They shorten the length of trial by eliminating the need for evidence on non-contentious matters.

By the time a matter reaches trial, most cases have narrowed considerably in scope. Agreeing on foundational facts is a simple but powerful way for counsel to assist the court in managing its time efficiently and making fair, focused decisions.

Proper understanding and application of evidentiary rules are fundamental to trial preparation. These rules are grounded in both the Rules of Civil Procedure and Evidence Act, and they exist to ensure that only credible, reliable, and relevant information is put before the court. Knowing what evidence can be admitted, and how to get it in, is critical to the success of any trial strategy.

General Considerations
A trial lawyer must be familiar with evidentiary rules well in advance of trial. This is especially important for newer litigators, who are encouraged to spend time understanding how these rules affect admissibility. Judges rely on evidence that meets strict thresholds of reliability. If the evidence lacks credibility or does not meet legal standards, it will be excluded, no matter how useful it might seem.

Proving Documents at Trial
Most civil trials hinge heavily on documentary evidence. But not every document automatically becomes admissible just because it exists. There are two primary concerns when seeking to admit documents:

1. Authenticity:
   • Can the party prove the document is genuine? Was it created at the stated time, and signed by the person it claims to be from?
2. Relevance and Hearsay:
   • Even if a document is authentic, it must also be admissible for the truth of its contents. For example, a letter written by someone who is merely speculating or repeating second-hand information could be excluded as hearsay unless an exception applies.

Transcripts
Discovery transcripts are often crucial to trial preparation and may be admitted as evidence under Rule 31.11, provided procedural requirements are met. These transcripts can be used for admissions, impeachment, or even as substantive evidence in some cases.

Reports and Records
Expert reports (as discussed earlier) are another common form of trial evidence. They must meet the requirements under Rule 53.03, including content, timing, and proper service on the other parties.

In addition, business records, such as invoices, logs, or internal reports, can be introduced as long as they meet the technical rules of admissibility under the Evidence Act. These records often require careful preparation to meet evidentiary thresholds, including statutory declarations or certifications of authenticity.

Documentary Strategy – Think Like a Puzzle
Admitting documents at trial is often like assembling a jigsaw puzzle. Rarely will one piece of evidence win a case on its own. The goal is to fit multiple pieces together into a coherent, persuasive picture for the judge. Understanding the technical rules gives lawyers the flexibility to plan ahead and avoid surprises.

Document Briefs and Presentation Tools
Document briefs are practical tools to help organize and present materials at trial. Typically, they include a table of contents and may contain key exhibits, expert reports, or summaries. These should be coordinated in advance with opposing counsel and the pre-trial judge to ensure agreement on:

• whether to use physical binders or electronic displays;
• how documents will be referenced during trial;
• whether the court has the necessary technology available.

Where possible, a case management conference or informal discussion with the trial judge may help finalize these logistics.

Under Rules 50 and 77, the trial judge holds broad authority over how the trial proceeds. Once a case reaches trial, it is no longer driven by the parties, control shifts firmly into the hands of the judge, who is empowered to make any orders necessary to ensure the trial runs smoothly, efficiently, and fairly.

The Role of the Trial Judge
The judge’s primary concern is trial management: keeping the hearing focused, maintaining courtroom order, and ensuring that time and resources are used wisely. Judges have discretion to issue procedural or evidentiary rulings, impose time limits, and make other directions to avoid delay or disruption.

Counsel’s role is to assist the judge, not to compete with or frustrate the court’s process. In practice, this means being organized, cooperative, and prepared. It also means not doing anything that might annoy the judge or waste time, such as submitting disorganized documents or failing to clarify how evidence will be presented.

The Value of a Trial Brief
One useful and often underappreciated tool is a well-prepared trial brief. While the judge will already have access to the full trial record, an organized and concise trial brief can be incredibly helpful. It offers the judge a quick reference point for the key parts of the case.

A trial brief typically includes:

• a short opening statement, outlining the party’s theory of the case and the key legal and factual issues; and
• a selection of the five most compelling documents, either already in evidence or very likely to be admitted, so that the judge can refer to them easily during the trial.

This kind of proactive organization not only shows respect for the court’s time, but also makes it easier for the judge to follow your narrative as the trial unfolds.

Coordination and Communication
Where possible, it is advisable to speak with the trial judge in advance, either through a trial management conference or at the pre-trial conference, to clarify expectations. This includes discussing:

• whether documents will be presented in physical binders or electronically;
• whether real-time transcription or special equipment is needed;
• any unusual courtroom arrangements (e.g., publication bans, sealed proceedings, or witness anonymity); and
• the schedule for witness attendance and anticipated trial length.

By addressing these logistics early and submitting helpful pre-trial materials, counsel helps the judge focus on the merits of the case rather than administrative hurdles.