Some lawyers are expressing relief following the repeal of rules that automatically dismissed actions for delay after two years if they hadn’t made their way onto a trial list.
“It’s an improvement on a situation that became unworkable not only for lawyers facing dismissals but also for the courts, for master courts that have had to deal with the ramifications of those automatic dismissals,” says Andrew Murray, a partner at Lerners LLP.
As of this year, parties have five years to set an action down for trial. “As of January 1st, 2015, Rule 48.15 [of the Rules of Civil Procedure] is repealed entirely,” wrote Superior Court Master Donald Short in Humphrey v. Screemers Inc.
“Rule 48.14 is also repealed and replaced with a simpler rule with longer time frames,” he added.
“Under the new rule, each statement of claim in the boilerplate portion at the outset of that document will contain a notice that the action will be dismissed five years after it is commenced unless it has been set down for trial or otherwise disposed of or there is an order extending the time. The dismissal will be automatic with no further notice.”
Some lawyers say Rule 48 was a bad idea to begin with. The two-year deadline under Rule 48, which allowed for quicker dismissals of dormant actions, dates back to 2009. At the time, the changes meant the court would dismiss several cases by Jan. 1, 2012. Besides the deadline itself, there were concerns about confusion arising from the wording of the rules.
While some lawyers call the new provisions an improvement, others say Rule 48 was a smokescreen for inefficiencies in the court system that the government has yet to resolve. “I’ve always thought Rule 48 was the attorney general’s failure to actually get enough resources from cabinet to allow him or her to build a modern [court] technology infrastructure in Ontario,” says Lou Ferro of Ferro & Co. in Hamilton, Ont.
“When the government started to worry about all the paper they have to store, the obvious solution would have been to put some technology in place,” he adds.
“The whole world understands that you can’t maintain a paper file anymore.”
Lawyers simply became political scapegoats for cases thrown out of the court system, according to Ferro.
“Instead of fixing the problem with technology, more judges, and better system design, they lashed out and said, ‘Oh well, we’re going to have a system called Justice on Target and we’re going to measure the length of time it takes from start to finish and, by the way, if you don’t fall in line with what we think is the proper timeline, we’re going to throw out your case,’” he says.
The rule failed to create efficiencies, adds Ferro, who notes it in fact did the opposite. When the court threw out a case after two years for delay, it was unlikely a lawyer would accept the dismissal without a fight, he suggests, noting followup motions seeking to set aside administrative dismissals only added to court time.
“You can’t just admit that your case is thrown out because you’ll get sued,” he says.
“You have to go back and get it reinstated. So instead of shortening the process, [the two-year restriction] has increased the process and the cost of the process.”
But the problem remains, according to Ferro. “As it turned out, in hindsight, none of it worked,” he says.
“Now all of a sudden they’ve gone from two years to five years, but it’s still the same problem.”
Murray says while the two-year limit might have worked in some areas, it was particularly problematic for lawyers practising personal injury law.
“It failed to take into account that oftentimes, counsel do know what they’re doing, the direction that a file is taking, the time that it’s taking, and there [could be] multiple good reasons as to why a case wasn’t set down for trial or even sometimes why there wasn’t a statement of defence,” says Murray.
Lawyers could be dealing with a minor or someone whose medical condition needs to stabilize before setting a trial date, he notes.
Ferro, too, says the previous rule had “an unrealistic expectation.”
“It’s an unrealistic expectation because the work I do is messy,” he says.
“Personal injury ligation and litigation of all kinds is messy. It’s not a very nice business because people are fighting, and to expect them to wake up one day on Year 2 and say, ‘By the way, we’re not fighting anymore, we’re going to move along,’ is totally unrealistic.”
Murray says the fact the new rules mean automatic dismissal after five years without further notice is both positive and negative in some ways. On the one hand, he says the change eliminates court time often spent on determining whether there was proper notice before dismissal. But on the other hand, lawyers who don’t have the proper time tickers may find their cases dismissed without their knowledge.
And while the switch to a five-year deadline may be good in complex matters, in other cases it will mean simpler files will drag on for far too long, says Kevin Toyne of Brauti Thorning Zibarras LLP. “In some cases, I think the change to five years is going to be helpful; in other cases, you may see the case languish without moving forward with the kind of speed that it should. So it’s really going to depend on the nature of the issues in the case.”
For more, see "Master calls for flexibility over Rule 48" and "Court gives civil lawyers reprieve from dismissal threat."