August 17, 2015

A doomsday cult believes the world will end on January 1, 2017 (at least according to the British press). If the earth somehow survives, we will need to face the consequences of another event occurring on that date: the dismissal for delay of numerous actions without notice.

Rule 48.14 of the Rules of Civil Procedure was amended to provide for the automatic dismissal without notice of all actions that have not been set down for trial (or otherwise terminated) by the later of 5 years after the commencement of the action and January 1, 2017.  Additionally, actions struck off a trial list and not restored to a trial list (or otherwise terminated) will be automatically dismissed without notice by the later of the second anniversary of being struck off and January 1, 2017. This means that, if no steps are taken, every action commenced on or before January 1, 2012 which is not on the trial list will be dismissed for delay on January 1, 2017.

This fate can be avoided by filing a consent timetable and draft order at least 30 days before the deadline or by bringing a motion for a status hearing. At the status hearing, the plaintiff has to show cause that the action should continue. The timetable must set a date for setting the action down for trial (or returning to the trial list) no more than two years after the deadline; at a status hearing, however, the court can chose any time for the parties to do so.

Under the old regime, the court staff would provide notice that the action would be dismissed 2 years after the commencement of the action if the action had not been set down for trial or otherwise terminated. This framework was criticized on the grounds that two years was simply too short a timeframe for a complex action to be ready to be set down for trial. Additionally, scarce court resources were consumed due to the requirements relating to serving status notices.

Under both the old and new regimes, the dismissal for delay could be set aside via a motion under rule 37.14. However, it is – of course – far better to be able to avoid having to resort to this mechanism, especially as there are no guarantees that a court would set aside the dismissal.

LawPRO – the insurer for Ontario lawyers – has prepared a guide for lawyers to help avoid the dismissal of actions under rule 48.14. LawPRO suggests that all lawyers update their tickler system (i.e. the system that advises lawyers of upcoming deadlines relating to files) to reflect these new administrative dismissal and set down deadlines for all open files. In summary form, LawPRO had some additional comments on how to improve tickler systems:

  1. Ensure the tickler system is effective, is populated properly, and staff is well-trained in the use of the system.
  2. Ensure that the ticklers are sent to at least two individuals at the firm.
  3. Establish a timetable for each matter and tickle start and finish reminders for each step in the litigation.
  4. Make sure junior lawyers are appropriately supervised and understand the operation of Rule 48.
  5. Build a culture of openness so that lawyers and staff are comfortable seeking answers to questions and asking for help on problems.
  6. To help ensure the work on individual files is more actively managed and monitored, consider creating file progress plans for all open files.