Canada: Ontario Court Of Appeal Implies New Prohibition Into Rules Of Civil Procedure: Pre-Trial Conference Judges Cannot Decide Summary Judgment Motions In The Same Action

Last Updated: September 13 2016
Article by Trevor Courtis

The purpose of a pre-trial conference is to provide parties with a forum to obtain an appraisal from a judge of their respective positions on the outstanding issues between them, and provide an opportunity to openly negotiate a resolution of these issues. The ability of the parties to speak freely without concern that their positions in the litigation will be prejudiced is protected by Rules 50.09 and 50.10 of the Rules of Civil Procedure, which provide that (i) the statements made at a pre-trial conference cannot be used in the proceedings, and (ii) the pre-trial conference judge cannot preside at the trial of the matter:

50.09 No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in the proceeding with respect to any statement made at a pre-trial conference, except as disclosed in an order under rule 50.07 or in a pre-trial conference report under rule 50.08.

50.10 (1) A judge who conducts a pre-trial conference shall not preside at the trial of the action or the hearing of the application, except with the written consent of all parties.

(2) Subrule (1) does not prevent a judge before whom a proceeding has been called for hearing from holding a conference either before or during the hearing to consider any matter that may assist in the just, most expeditious and least expensive disposition of the proceeding without disqualifying himself or herself from presiding at the hearing.

The Rules of Civil Procedure do not expressly prohibit the pre-trial conference judge from hearing a subsequent summary judgment motion in the same matter. In Royal Bank of Canada v. Hussain, 2016 ONCA 637, the Ontario Court of Appeal recently held that such a prohibition should be implied into the Rules to ensure the continued productivity of pre-trial conferences.

The Proceedings in Hussain

In Hussain, summary judgment was granted in favour of the Plaintiff on December 18, 2015 by the same judge that had presided over a pre-trial conference in the matter a year prior on December 1, 2014. The Defendants did not object to the judge hearing the motion at the time. They subsequently appealed the decision, arguing that the pre-trial conference judge was precluded from hearing the motion.

Rules 50.09 and 50.10 Do Not Strictly Apply

The Ontario Court of Appeal recognized that Rules 50.09 and 50.10 do not strictly apply to these circumstances:

  • Rule 50.09 only prohibits the communication of statements made at the pre-trial conference in subsequent proceedings. Nothing was communicated to the motions judge about the pre-trial conference at the summary judgment motion, he had just presided over the conference.
  • Rule 50.10 only prohibits a pre-trial conference judge from presiding at the trial of the matter. The prohibition does not include motions, whether summary judgment or otherwise.

Prohibition Implied Into Rules

The Court of Appeal recognized that the policy rationale for these Rules (to ensure that parties are free to engage in without prejudice discussions at pre-trial conferences) clearly supports that they were intended to apply to these circumstances as well. Rule 50.10 was intended to prohibit the pre-trial conference judge from being the one who determines the merits of the issues in a proceeding. In light of the expanded fact-finding powers available under Rule 20.04, a summary judgment motion "must be viewed as akin to presiding at a trial or the hearing of an application."1

Accordingly, the Court relied on Rule 1.04(2), which states that "where matters are not provided for in these rules, the practice shall be determined by analogy to them", to imply the following rule into the Rules of Civil Procedure:

... a judge who conducts a pre-trial conference [is prohibited] from presiding on a summary judgment motion in the action, except with all parties' written consent.2

Scope of the Implied Prohibition

While the Court of Appeal in Hussain restricted the prohibition to subsequent summary judgment motions, there is an arguable case that the prohibition should also apply to other subsequent motions that may dispose of an action or application, such as:

  • Rule 21.01(1)(a) motions for the determination of a question of law before trial;
  • Rule 21.01(1)(d) abuse of process motions; and
  • Rule 24.01 motions to dismiss an action for delay.

In addition to information about the merits of the proceeding, the pre-trial conference judge may be privy to information about the parties and their conduct both within and outside the proceedings. This information may be relevant to the motions listed above. Parties in future cases may attempt to extend Hussain by arguing that the policy rationale for Rules 50.09 and 50.10 is best served by prohibiting a pre-trial conference judge from hearing all subsequent motions that may dispose of the proceeding.


Parties that have attended a pre-trial conference and are subsequently moving for summary judgment would be well-advised to take steps to limit the chances that they will appear before the pre-trial conference judge by notifying the Registrar that the motion cannot proceed before this judge at the time of booking. If the motion happens to be scheduled before this judge, the moving party should raise the issue with opposing counsel and request written consent to proceed. If opposing counsel is not willing to consent, the motion should be adjourned.

The moving party should also consider taking these steps in other types of subsequent motions out of caution that the prohibition in Hussain may be extended.

The onus appears to be solely on the moving party to take these steps. If the motion proceeds and the moving party is successful, the responding party can rely on this implied prohibition to have the result overturned, as in Hussain.

Case Information

Royal Bank of Canada v. Hussain, 2016 ONCA 637

Docket: C61633

Date of Decision: August 22, 2016


1 Royal Bank of Canada v. Hussain, 2016 ONCA 637 at para. 19.

2 Ibid at para. 22.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions