The central issue before Justice Burrows was whether participation in a Dispute Resolution Process under Rule 4.16 could be waived on the consent of the Parties. Counsel for the Plaintiff presented a Consent Order in morning Chambers, which provided that leave of the Court was granted to waive the mandatory Dispute Resolution Process required by Rule 4.16. No evidence was proffered to establish that any of the reasons upon which a waiver could be granted, as set out in Rule 4.16(2), were met. Further, neither of the Parties appeared at the Application, despite the attendance requirement in Rule 4.16(3). Although the Action was commenced in 2006, the new Rules applied because, pursuant to Rule 15.3, discoveries were not completed before the new Rules came into effect.

Counsel for the Plaintiff argued that engaging in a Dispute Resolution Process would be futile, and a waste of resources. However, Justice Burrows was not satisfied that a Dispute Resolution Process would be futile. Even where an immediate resolution is not achieved, a Dispute Resolution Process is useful where it clarifies the issues and gives the Parties a clear sense of how an independent judicial officer assesses the Parties’ respective risk.

Justice Burrows held that an Order under Rule 4.16(2) cannot be granted on the basis of consent alone. Rule 4.16 renders engaging in a Dispute Resolution Process nearly mandatory. Such a process was entirely voluntary under the old Rules. If Rule 4.16 could be waived by the consent of the Parties, the intent of the Rule, that Pre-Trial Dispute Resolution would no longer be voluntary, would be frustrated. In any event, Justice Burrows held that the Order could not be granted where the mandatory attendance requirement in Rule 4.16(3) was not satisfied. The Application was dismissed.