CIVIL PRETRIAL CONFERENCE PRIVILEGE: A COSMIC BLACK HOLE?
AbstractThe civil pretrial conference is designed to provide an opportunity for the court to supervise the progress of an action to trial, prepare it for a more efficient trial, and encourage settlement. For the potential of the pretrial to be realized the participants must be free to engage in frank discussions secure in the knowledge that their comments will remain privileged unless otherwise intended. This need conflicts with the court's basic function of ascertaining the truth. Only one-half of the civil jurisdictions in Canada have addressed the issue of civil pretrial conference privilege in rules of court. Statute and common law supplement the protection offered by certain rules. However the protection is not ideal. In some provinces the protection is insufficient while in others it is too extensive. An appropriate balance must be found. The draft rule presented will aid in this quest.
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