The Consequences of Delay

Published on: June 2024 | What's Trending

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On February 28, 2024, the Ministry of the Attorney General of Ontario released an important notice to the public and to the profession, reinstating a rule that was suspended during the COVID pandemic that will impact the management of civil claims before the Superior Court of Justice in Ontario.

Effective May 13, 2024, court staff will resume issuing and serving administrative dismissals and orders for delay.[1] As a result, per rule 48.14 (1) of the Rules of Civil Procedure, all civil matters, excluding matters before the Commercial List in Toronto as well as actions brought under the Class Proceedings Act, will be subject to a firm five-year term to be set down for trial.[2]

From March 16, 2020, to September 13, 2020, the Ontario courts implemented a suspension of all time periods on claims while the courts were closed as a result of Covid-19. When the courts reopened these timelines were reactivated, however a direction was made to put a pause on the issuance of administrative dismissals. For roughly the last four years, counsel have acted without having to worry about administrative repercussions for a delay in set down dates in their management and control of files. With the latest notice to the profession, this is now a consideration that must be accounted for once again.

In the initial reinstallation of administrative dismissals, the courts intend to capture all matters commenced prior to November 12, 2018. This takes into account the five-year set down date from May 13, 2024, plus the 182-day Covid suspension. While it goes without saying that this is now critically important for matters commenced on or before November 12, 2018, it is also equally important for best practices on all matters that the five year period to set a matter down for trial, must be carefully monitored and appropriate steps taken to avoid administrative dismissal deadlines in the future.

In the event that a matter is nearing the five-year set down date, the natural solution is to ensure it is set down for trial before the deadline. There are times however where further procedural steps are required before a matter is ready to be set down without enough time to complete those steps. In those cases, there are mechanisms that can resolve this concern.

Pursuant to rule 48.14(4) the administrative dismissal deadline can be avoided by ensuring that the parties agree to and file a consent draft order and timetable at least thirty days before the set down date.[3] The timetable is required to be signed by all parties and identify the steps to be completed before the action may be set down for trial with dates by which those steps are to occur, ending no more than two years after the day the matter needs to be set down.[4]

If a consent timetable cannot be coordinated between counsel more than thirty days in advance of the set down date, then counsel are left with the option of bringing a motion for a status hearing. Under 48.14(5) a party can bring a motion in advance of the 5-year set down date requesting an order for an extension.[5] On a status hearing, a party must satisfy a two part test, demonstrating that there is an acceptable explanation for the delay and that if the action were allowed to proceed the opposing party would suffer no non-compensable prejudice.[6] The courts have also advised that further relevant contextual factors should be considered as part of the evaluation.[7]

Cases can get extended for many reasons and before you know it, you can be up against the fifth anniversary of the issuance of a claim. In times when that occurs, it is helpful to know and be familiar with the remedies available to extend set down dates. That said, the best way to ensure the set-down date is avoided entirely, is to be organized and engage in proactive litigation. Taking steps to ensure that procedural action items are addressed in a timely manner and that files keep moving will prevent the risk of a possibly fatal delay and gives counsel good odds to have a matter prepared for set down within five years. Being well organized with a robust, consistent reminder system in place, setting matters up at the beginning with flags for important dates will help avoid the lapses that could result in a dismissal order.

[1] Notice to the Public and Legal Profession, Resuming Administrative Dismissal Notices and Orders, Ministry of the Attorney General, Court Services Division, February 28, 2024
[2] 48.14 (1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194
[3] 48.14 (4), Rules of Civil Procedure, R.R.O. 1990, Reg. 194
[4] Ibid
[5] 48.14 (5), Rules of Civil Procedure, R.R.O. 1990, Reg. 194
[6] Khan v. Sun Life Assurance Co. of Canada, 2011 ONCA 650 at para. 1
[7] Koepcke v. Webster, 2012 ONSC 357 (Master) at para. 18