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Articles and Publications

November 2016

Case Study - Mock Pre-Trial

Planter v. Denison and the City of London

Marla Kuperhause
Marla Kuperhause,
Associate

By Marla Kuperhause
First presented at a Client Transportation Mock Pre-Trial Seminar

In the case of Planter v. Denison and the City of London (2016), the Honourable Justice Archibald of the Ontario Superior Court of Justice clarified the purpose and significance of a pre-trial conference.

This action arose as a result of a motor vehicle accident that occurred late in the early morning after St. Patrick's Day. The plaintiff, a twenty-one year old Western University student, spent the evening drinking, and later attempted to cross the street at an unlit crosswalk. The defendant driver, a family man and factory worker, was unable to properly see the plaintiff and struck him with his vehicle. The defendant City was called upon to accept partial liability for failing to properly illuminate the crosswalk.

As a result of the accident, the plaintiff suffered a severe concussion and impaired brain functioning. The parties disputed liability, and whether the plaintiff met the threshold for a catastrophic impairment.

Despite a prior pre-trial conference and a formal offer to settle made by the plaintiff, the parties were unable to resolve the matter. As such, they arranged for a second pre-trial with Justice Archibald, which was scheduled merely two weeks before the commencement of trial. Each party attended the conference, along with his/her counsel, and a representative from the accident benefits insurer.

Justice Archibald initiated the pre-trial conference by providing each counsel with the opportunity to state his/her case. Subsequently, the clients were invited in to the room to discuss the case at large.

Justice Archibald then spoke with each party independently. Once alone, the parties could speak with His Honour in an open and non-prejudicial manner. His Honour first met with plaintiff and his counsel to discuss their expectations and the benefits of settling this file before a lengthy trial. During this meeting, Justice Archibald built rapport with the plaintiff, and utilized this connection to speak bluntly about the prospects of reaching a resolution. His Honour then met with the defendants collectively, and helped narrow the contentious issues hindering settlement.

Justice Archibald used his vast experience in insurance litigation to guide the parties toward a reasonable settlement. Although the process was time-consuming, and at some points arguably stagnant, the pre-trial conference proved successful and the matter settled. Each of the defendants indemnified the plaintiff for their portion of liability in the motor vehicle accident; the accident benefit insurer paid an amount to resolve that claim.

Justice Archibald took the opportunity to discuss the need to involve the plaintiff and defendants in the settlement process. Of particular importance is the need for insurers to come to the pre-trial conference with sufficient settlement authority. In turn, the clients impressed upon His Honour the need to involve them in the process, stating that all too often they are left waiting in the hall.

TORONTO | OTTAWA | KITCHENER | BARRIE | LONDON

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