|‘None of us knew that our actions would be subject to an automatic dismissal at the first of the month,’ says Andrew Murray.|
as a result of the change.
The previous Rule 76 addressing cost and delay issues focused directly on pretrial procedures in cases involving fairly small monetary amounts.
But under the new rule, unless a court orders otherwise, the registrar can now dismiss actions that don’t make their way onto a trial list or aren’t terminated within two years after the first defence is filed.
At least one prominent lawyer is worried about the changes. According to Andrew Murray of Lerners LLP’s London, Ont., office, the rule has caught many lawyers by surprise and its wording isn’t clear when it comes to the steps they must take to ensure the court doesn’t dismiss their actions.
“I think you will see the bulk effect of this rule in personal injury actions,” says Murray. “None of us knew that our actions would be subject to an automatic dismissal at the first of the month.”
Murray adds he wrote to the manager of London’s court operations with a copy sent to the administrative justice outlining six files he felt could be vulnerable to an automatic dismissal under the new rule.
“Administrative Justice Helen Rady later spoke with me and confirmed there were others who shared concerns about the implications of the rule,” says Murray. “No one wanted to have harsh or unintended consequences because of the rule, so it was agreed that a set of recommendations would be developed.
We’re currently in the process of doing that, and at least in London, we hope to have a joint meeting between the bench and the bar to talk about those issues soon.”
Until then, according to Murray, the courthouse in London will continue to ignore the rule.
“There’s been discussions about how to move forward, but for right now they’re shutting down the systems, so to speak, until it’s decided what that may be.”
In his view, that’s not necessarily a bad thing. “The rule has become more of an administrative problem here and it’s actually quite a pain,” he says.
“It just squanders time and resources and adds more red tape to the system when we have to constantly look for ways to take these steps that the rule speaks of but never really defines.
I like to refer to it as the law of unintended consequences. I’m sure it was intended to clean out the cases that are truly abandoned but it’s had other unintended results.”
Murray notes those consequences could include the court throwing actions out despite the fact that they remain active litigation files.
“Things could be going along fine and then, because the court has no way of knowing when certain steps are taken, everything could be thrown out even though you’ve been working in mediation, for example. It will depend on who’s in charge as well.
Windsor and Ottawa operate under a case management system, for example, which can help prevent that from happening, but it really raises a lot of questions here in the meantime.”
Still, Colin Stevenson, chairman of the Ontario Bar Association’s civil litigation section, says that in Toronto, at least, the same measures are unlikely. “The rule has existed since 2009 and several organizations sent out notices about the changes,” he says.
“When the deadline finally came, it shouldn’t have been a surprise, although it could still pose a problem if a registrar chooses not to implement it. The rule on its face doesn’t technically require the registrar to do anything.
At this point, all the cases would have been deemed to be dismissed despite whether or not the registrar did anything, although lawyers could bring motions to try to prevent the actions from being thrown out.”
While Stevenson doesn’t think there was “a huge problem” with Rule 48 among Ontario’s legal community, he says he understands the concerns of personal injury lawyers. “There was a debate about it among the personal injury bar.
It’s understandable because those types of cases have a tendency to drag on, so it’s easy to get caught within the rule. But I do think there was enough time to prepare overall.”
But Colin Chant, an associate at Moodie Mair Walker in Toronto, says being caught off guard by the rule can be quite jarring if lawyers aren’t prepared.
“I think the main thing people will be dealing with is the fact that there needs to be an obvious clarification of the rule in terms of what a step is,” says Chant. “I’m hoping it will be decided soon because it seems quite a few people, even directly within the justice system, have been left wondering.”
Master Ronald Dash touched on the issue briefly last Monday, in fact, when writing in Koepcke v. Webster that plaintiffs could take several steps when looking to protect their actions from dismissal.
“The explanation for the delay must be such as to justify continuance of the action or put another way to satisfy the court that the action should be permitted to proceed.
This ‘requires, among other things, a determination regarding the plaintiff’s intention to prosecute the action throughout the period since the commencement of the action,’” wrote Dash, quoting from Oberding v. Sun Life Financial last year.
Dash made the comments during a contested status hearing last week at which Toronto litigator Jeffrey Radnoff, who represented Marc Koepcke in the case, was required under Rule 48 to show why the court shouldn’t, on the basis of delay, dismiss an action for solicitor’s negligence against another lawyer.
Dash ultimately ruled the action could continue while allowing 14 days for counsel to decide whether the litigation should proceed. Within 21 days, Dash also ordered Radnoff and Koepcke to arrange a case conference with him as well.
Ultimately, Dash determined the action must be set down for trial or terminated by April 30, 2012. If that doesn’t happen, the court will dismiss it under the rule.
“No steps whatsoever were taken in the action for over two years between the close of pleadings and issuance of the status notice,” wrote Dash.
“The plaintiffs’ explanation was that the action was commenced
as a precautionary action and would proceed only if the second underlying action were dismissed as a result of the defendant’s negligence in taking no steps to prosecute the first underlying action.
“Until then it was uncertain if the plaintiffs had suffered damages because of the defendant’s negligence and as a result the plaintiffs held this action in abeyance.
While I found this to be an acceptable explanation for the delay in taking steps in the litigation such as productions and discovery, I found that the plaintiffs failed to provide an acceptable explanation for no taking no steps whatsoever, such as moving for a stay of proceedings or advising the defendant of their intentions and seeking his consent.”