What Happens at a Pre-Trial Conference in an Ontario Personal Injury Lawsuit?

A pre-trial conference is a settlement conference held before a judge or associate judge in an Ontario personal injury lawsuit. It gives the parties an opportunity to discuss the claim with input from the court and to address what happens next if the lawsuit does not settle.

For the plaintiff, pre-trial can be a significant point in the case. An insurer that has maintained the same position through negotiations or mediation now has to defend that position before a judge. The plaintiff may also receive direct feedback about a weakness in the claim that needs to be weighed before an offer is rejected.

The judge does not decide the lawsuit at pre-trial. There is no verdict and no damages award. The purpose is to discuss settlement, identify the issues keeping the parties apart and, if the claim does not resolve, deal with the next steps.

This is where experienced Ontario personal injury lawyers have to present the claim clearly, prepare the client for the defence arguments, respond to the insurer’s position and advise whether an offer is sufficient or the lawsuit should continue.

Under Rule 50 of Ontario’s Rules of Civil Procedure, a pre-trial conference can address settlement, liability, damages, trial length, witnesses, expert evidence and any steps needed to move the lawsuit forward.

Why do personal injury lawsuits go to pre-trial?

A personal injury lawsuit reaches pre-trial because earlier settlement discussions have not resolved the case.

By then, the insurance has usually had a substantial opportunity to investigate the file. Medical and income records have been exchanged. The plaintiff has often answered questions at examination for discovery in Ontario personal injury lawsuits. Undertakings from discovery may have been answered. In many lawsuits, the parties have already attended mediation in Ontario personal injury cases without achieving a settlement.

The disagreement is usually clearer by this stage. The insurance company could be accepting that an injury occurred but dispute how serious it is, or what caused the ongoing symptoms, how long the symptoms will continue or what financial losses flow from them. In other situations, the two sides may disagree about fault in the collision. Some claims turn on income loss, future care or prior medical history. Other cases might turn on whether the plaintiff will be believed at trial.

Pre-trial puts those positions before a judge. The judge is not deciding the case, but can challenge a position that appears disconnected from the evidence or identify a problem that either side has been avoiding. They will often provide their own informal opinion on the case in an attempt to help the two sides achieve a resolution.

What happens at a pre-trial conference?

Before the conference, each side prepares a pre-trial brief. The brief provides the judge an overview of the lawsuit, the issues still in dispute, the party’s position and the evidence expected to be relevant if the case continues.

At the conference, the lawyers do most of the speaking. Sometimes judges have some discussions with only the lawyers. Sometimes they include everyone in all discussions. In some pre-trials the Plaintiff’s counsel explains the claim and the evidence supporting it. Defence counsel explains why the insurer disputes the claim or values it differently. The judge then discusses the issues preventing resolution.

In an Ontario personal injury lawsuit, the discussion can include how the incident occurred, what treatment was received, what restrictions remain, whether the plaintiff has returned to working, whether future losses are claimed and what arguments the insurer relies on to reduce the claim.

A judge can be direct. If the defence continues to deny liability despite difficult evidence, the judge may ask why. If the insurance company has discounted an injury despite strong medical support, the judge may question that position. If the plaintiff’s income loss claim is poorly documented, or if causation is difficult, those problems can be raised as well.

Hearing an experienced judge provide their opinion on a case can often cause a party to rethink their position. A position that one side has maintained for months can sound different once a judge asks how it will be proved at trial.

If the lawsuit does not settle, the judge addresses matters affecting the path forward, including witnesses, expert evidence, trial length, admissions that could narrow the proceeding and further procedural steps.

Is pre-trial the same as mediation?

No. Both can lead to settlement, but they are different processes. Mediation is a private settlement meeting with a mediator. The mediator can test each side’s position and assist with negotiations, but does not speak as a judge.

At pre-trial, the parties attend before a judge or associate judge. The judge still does not decide the lawsuit at the conference, but judicial feedback can affect how the parties view their positions.

An insurance companymay have dismissed plaintiff’s counsel’s arguments throughout negotiation and mediation. If a judge raises the same concern about the defence at pre-trial, the insurer may be more willing to reconsider its offer. A plaintiff may also hear that causation, income loss, medical evidence or trial uncertainty creates a risk that needs to be considered before proceeding.

The pre-trial judge can also set the "rules" of the trial in terms of witnesses and how it will proceed.

Does the pre-trial judge decide the case?

No. The judge conducting the pre-trial conference does not decide liability or the value of the plaintiff’s damages. Under Rule 50, the pre-trial judge cannot later preside at the trial unless all parties provide written consent.

That separation allows the settlement discussion to be candid. The judge can question positions, identify weaknesses and speak about trial risk without later becoming the person who decides the case on the evidence.

For the plaintiff, a difficult comment from the pre-trial judge is not a finding against them. It is information which at needs to be considered when deciding whether an offer is fair or whether the case should continue.

When does pre-trial happen?

There is no single practical timetable that describes every Ontario courthouse and every personal injury lawsuit. Ontario’s Rules of Civil Procedure provide the general framework. For actions governed by the current provincial scheduling provision, the rule generally contemplates a pre-trial conference between 30 and 120 days before trial or the sitting in which trial is expected to take place, unless a court order or applicable practice direction provides otherwise.

Regional practice directions affect how this operates in practice. In the Central East Region, counsel initiate the request to schedule a civil pre-trial. The regional direction provides that pre-trial dates are to be scheduled within 120 days of trial or the commencement of sittings where possible. Civil pre-trials involving settlement and trial management are presumptively conducted virtually in that region.

Essentially, the pre-trial takes place once the lawsuit has progressed far enough for a judge to assist with settlement and deal with what needs to happen next if the claim cannot be resolved.

Does the plaintiff attend pre-trial?

The plaintiff will usually participate in the pre-trial conference with their lawyer. They are usually conducted over zoom. This is different from discovery. At discovery, the plaintiff answers questions under oath. At pre-trial, counsel ordinarily presents the claim, responds to the judge and defence counsel and speaks about the settlement position. The client listens, speaks privately with their lawyer and provides instructions if settlement becomes possible.

The client still needs preparation. An insurance company could argue that the injuries are less serious than claimed, that symptoms existed before the incident, that treatment records do not support the losses, that the plaintiff recovered better than alleged or that trial creates significant risk.

Before the conference, the plaintiff should understand the defence arguments, the evidence supporting the claim, the settlement history and the practical effect of accepting an offer. If settlement is discussed, the client needs to understand the expected net recovery after legal fees, disbursements, HST and any repayment issue.

How a plaintiff’s lawyer prepares for pre-trial

A pre-trial brief should make the dispute easy for the judge to understand.

A large medical file with thousands and thousands of pages does not meaningfully assist a judge. The judge needs to know what happened, what injury remains, what losses are claimed, what evidence supports them and why the insurer has not resolved the case.

The preparation depends on the dispute. If liability remains contested, counsel needs to present the evidence showing how the injury occurred and why the defendant is responsible. If the dispute is about damages, the focus shifts to the medical evidence, work loss, future needs and the defence arguments being used to reduce the claim.

If the insurance company intends to rely on prior symptoms, treatment gaps, surveillance or answers given at discovery, those points need to be addressed rather than ignored. If the plaintiff relies on expert evidence, the reports need to be organized around the loss being claimed. An opinion about future care, work capacity or long-term impairment is more persuasive when the judge can see how it fits the plaintiff’s case.

Medical and expert evidence at pre-trial

Medical evidence is usually central in most personal injury disputes. Treatment records can show what complaints were made and what care was received. They do not always answer the larger questions: whether the impairment will continue, whether the plaintiff can return to work, whether future assistance is required or whether ongoing symptoms were caused by the incident.

In most cases, there will be expert evidence can address prognosis, permanent restrictions, work capacity, future care, psychological injury, cognitive impairment or financial loss.

Ontario’s pre-trial framework requires expert evidence to be addressed in advance of the conference. In actions, each party must deliver a certificate of readiness identifying whether expert evidence will be called at trial and whether required expert reports were served within the applicable deadlines. Medical and expert reports intended for trial that could assist the judge are also provided for pre-trial purposes.

In significant injury claims, that evidence can change settlement discussions. If the insurer has treated the claim as routine despite evidence of ongoing disability, reduced earning capacity or future care needs, pre-trial gives plaintiff’s counsel an opportunity to put that dispute before a judge. The plaintiff also needs candid advice where the expert evidence does not support part of the claim as strongly as expected.

Why personal injury cases settle at or after pre-trial

Pre-trial can move settlement because the parties are no longer negotiating only with each other. An insurance companymay have maintained a low offer through correspondence and mediation. If a judge questions whether that offer reflects the evidence, the adjuster may seek further authority their company or deliver a revised position after the conference.

The same process can affect the plaintiff. If the judge identifies a weakness in causation, credibility, income loss or future damages, that concern has to be taken seriously before rejecting an offer and proceeding further.

Not every case settles during the conference. Sometimes the parties need time to consider what was said. Sometimes an insurer needs further instructions. A new offer can be made after pre-trial rather than during the hearing itself.

For more information about settlement proposals in injury lawsuits, see our article on offers to settle in Ontario personal injury claims.

Pre-trial in an Ontario car accident lawsuit

Ontario car accident lawsuits raise issues at pre-trial that do not arise in the same way in every injury claim.

The insurer may rely on Ontario’s statutory threshold for pain and suffering damages and argue that the injured person has not suffered a permanent serious impairment of an important physical, mental or psychological function. The statutory deductible can also reduce the amount payable for pain and suffering.

The insurance company might refer to accident benefits records, insurer examinations, prior symptoms, surveillance, treatment history, work attempts or answers given at discovery. If a jury trial remains possible, the insurer may also rely on uncertainty about how jurors will assess chronic pain, psychological injury, disputed income loss or symptoms that are not obvious on imaging.

Those arguments do not determine the claim simply because the insurer raises them. They affect the advice the plaintiff needs. Counsel must assess the strength of the evidence, the risk of proceeding and whether the settlement offer fairly reflects the claim.

For information about motor vehicle injury claims, see our Ontario car accident lawyers page.

Serious injury cases at pre-trial

In a severe injury lawsuit, pre-trial often centres on evidence of future loss.

A diagnosis does not establish the value of a case. Experienced personal injury lawyers will work to obtain evidence which shows how the injury affects work, independence, daily function, future treatment and any support the person will require going forward.

Where the evidence establishes significant ongoing loss, pre-trial can put pressure on an insurer that has valued the claim too narrowly. Where the evidence does not properly support part of the plaintiff’s position, that can also become clear before the lawsuit continues.

What happens if the case settles at pre-trial?

If settlement is reached, the terms are recorded and the plaintiff will ordinarily sign a release ending the lawsuit in exchange for the agreed payment.

Before accepting a settlement, the plaintiff should understand the amount offered, the deductions that apply, the expected net recovery and the claims being released. A settlement generally ends the claim permanently. If the injury later proves worse than expected, the plaintiff ordinarily cannot reopen the settled lawsuit for additional compensation.

The decision should be based on the evidence and informed advice, not simply on the pressure of appearing before a judge.

What happens if the case does not settle?

The judge or associate judge can address remaining steps, narrow issues, deal with anticipated witnesses or expert evidence and make procedural orders needed to move the lawsuit forward. The pre-trial process can also result in a report identifying remaining steps and other information relevant to the continued proceeding.

Settlement discussions can continue after pre-trial. One side may revise its position after considering the judge’s comments. If no agreement is reached, the lawsuit proceeds toward trial.

About the Author

Lane Foster is an Ontario personal injury lawyer and the founder of Foster Injury Law. He represents injured people in serious personal injury and car accident lawsuits across Ontario, including claims involving discovery, mediation, settlement negotiations and pre-trial conferences.

Final Thoughts

A pre-trial conference gives the parties in an Ontario personal injury lawsuit an opportunity to discuss settlement before a judge and address what remains to be done if the claim continues.

For an injured plaintiff, the conference can change the direction of the case. A judge may cause the insurer to reconsider a position it has maintained for months. The judge might also identify a risk that needs to be understood before a settlement offer is rejected.

Whether the lawsuit resolves or continues, the plaintiff should leave pre-trial with clear advice about the evidence, the available settlement position and the next step in the claim.