Start With the Practice Direction
The Consolidated Practice Direction (Practice Direction), effective October 14, 2025, should be your next stop. It is a consolidated direction that is critical reading for any lawyer practising on the Commercial List. It deals with:
- Eligibility and general procedures
- Originating process and place of hearing
- Applications for transfer to/from the Commercial List
- Document requirements
- Scheduling for applications, motions, and trials
- Estimates of required time
- Chambers matters and case management
- Summary judgment
- Various other matters
These topics directly inform how counsel should prepare for a pre-trial, hearing, and/or judge-led mediation.
The Key Provision: Part G.17
The most important section of the Practice Direction for pre-trial hearings and judge-led mediations is Part G.17: Alternative Dispute Resolution and Pre-Trials, beginning at paragraph 53. As a general matter, Part G.17 reflects the principles applicable to all Commercial List matters.
Counsel with carriage of pre-trial hearings and judge-led mediations should be two things above all else:
- Informed about the matter of which they have carriage
- Authorized to speak on behalf of the party they represent at that hearing or mediation.
In short, counsel must be informed decision makers. Information without authority, authority without information, or worst of all, neither, is unacceptable and will not be tolerated on the Commercial List.
The Duty to Explore Resolution
The Practice Direction imposes a mandatory duty of the case management judge or supervising judge, and a corresponding obligation on counsel, to explore methods to resolve the contested issues, including ADR, at case conferences and on any other appropriate occasions (paragraph 54).
What counsel will realize is that case management is the default on the Commercial List. The judges are knowledgeable and informed, and the consistency of judicial oversight produces accumulating aggregate knowledge. The Court expects the same level of preparation and familiarity from counsel.
Preparation: The Foundation of Efficiency
The Commercial List expects counsel to prepare and do the work necessary to make the presiding judge’s job easier, and therefore more efficient and effective. This expectation applies to all matters, but it carries particular weight in the context of pre-trial hearings and judge-led mediations.
Preparation now extends to the proper use of electronic systems such as Case Center and hyperlinked compendium. Counsel should prepare and upload materials to Case Center well in advance, Taken together, those materials constitute a road map through the matter to the issues the Court will determine or resolve.
In addition to a full record prepared and delivered in accordance with the Rules, counsel should provide the following supporting documents for pre-trial hearings and mediations:
- Cast of Characters: A list of the key parties, players, and witnesses whose identities will help the judge understand the matter.
- Chronology: A brief neutral summary of the key dates, ideally annotated with document and page references, to the key events. Note, this is not an argument; it is a factual timeline relevant to the disputed issues.
- Compendium: A brief of the key documents. Where the documents are lengthy but only a few paragraphs are relevant, use excerpts or highlighting. Include an electronic index hyperlinked to pinpoint page references in Case Center or CanLII for use during oral submissions.
- Draft Order: Where applicable, prepare a draft order following the Commercial List Users’ Committee template/precedent.
Commercial List Judges Expect Proportionality, Efficiency, & Practicality, Not Formality
Commercial List judges have limited time and resources, yet they deal with complicated and often time-sensitive matters. Accordingly, they expect counsel to be knowledgeable, authorized, and prepared, having thought through the issues in advance. The emphasis is on proportionality, efficiency, and practicality, not formality.
In short, when conducting any pre-trial hearing or judge-led mediation on the Commercial List, counsel should follow these principles:
- Provide the materials the judge needs to understand the issues.
- Ensure the materials comply with the requirements of Part G.18 of the Practice Direction, including proper indexing, hyperlinks, bookmarks, and concision.
- Deliver the materials in a usable, concise, and summary format.
- Take reasonable positions (only) and be prepared to defend those positions.
- Be prepared to compromise. Arrive instructed and authorized to make concessions where doing so serves your client’s interest in resolving or narrowing the issues. Failing that, the Court will impose a result. It is often better that your client has some input into that result.
