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Master calls for flexibility over Rule 48

|Written By Marg. Bruineman

An Ontario court has decided that flexibility is in order when it comes to a new rule imposed in civil litigation cases.

Chris Jaglowitz says Rule 48 is actually wasting rather than saving court resources.

Rule 48, implemented in the Rules of Civil Procedure last year, is intended to move cases along and weed out inactive cases. It lays out what’s required in an administrative dismissal and what is necessary to have it reversed. The rule has come under scrutiny by some for being unnecessary and others for aspects of it they say are unclear.

In a Feb. 4 decision, Superior Court Master D.E. Short decided the rule shouldn’t outright trump the right of access to justice. His lengthy ruling includes suggestions on what is necessary to contest a dismissal at a status hearing.

“It is appropriate, in the circumstances of this action to provide the plaintiffs with a ‘lifeline.’ Having considered this matter at length, I exercise my discretion to allow the plaintiffs’ claim to proceed,” he wrote.

“While I agree that discouraging delay and for judicial involvement in moving cases forward is highly desirable; I am not convinced that the existing case law establishes or ought to establish this result as trumping the other desirable goals of access to justice and resolution on the merits.”

At the core of 1667207 Ontario Inc. v. Botnick is a real estate transaction that went bad, resulting in a statement of claim naming three defendants issued on April 9, 2009.

The defendants argued delay because the case hadn’t moved forward. But Short found there was action on the file.

M. Joseal Igbinosun, acting for the numbered company, said now  that the argument of delay is quashed, the case can proceed following the timeline laid out by Short in the decision.

“It is strange because it is not every day we have that kind of a motion,” said Igbinosun. “His position was that access to justice means people should be heard.”

Short’s decision helps to further define this new rule that continues to be tested, said Colin Chant, who has a wide-ranging civil defence and plaintiff personal injury practice with Moddie Mair Walker Lawyers and has been following decisions affected by a rule he calls a potent tool to weed out languishing cases.

“[The decision] continues to fill in the gaps in the jurisprudence that people have worried about,” said Chant. “It gives us a nice lay of the land.

“If you don’t move . . . then you face the prospect of having the action dismissed,” he said. “There’s now more of a formal process around the status hearing.”

Rule 48 was designed to weed out lingering cases and lays out a series of actions that need to be carried out in order for them not to be dismissed as abandoned. And there is reference to steps that need to be taken. Short clarifies what is necessary to avoid a registrar’s dismissal and offers a more specific set of criteria, said Chant.

To avoid a dismissal, the motion must be well on its way to being resolved, meaning a great deal of emphasis is placed on the speed of justice, observed Chant.

“He gives more specific criteria on what a master is going to be looking for. But at the end of the day, there’s still that residual discretion.”

Brian Radnoff, a commercial litigator at Lerners LLP, said the intent of the rule is to keep things moving along.

“Courts are starting to be more strict with delays,” said Radnoff.

At the same time, defendants are becoming more aggressive in complaining about delay. “This decision contains a very thorough analysis of what a court should consider at a status hearing when there’s a motion to dismiss for delay.”

Despite direction provided from the courts, the rule isn’t universally accepted. In fact, the Ontario Bar Association has been asking for changes to Rule 48.

“It is our view that the operation of the rule results in an avoidable waste of administrative resources and limits access to justice through unproductive use of judicial resources,” said Chris Jaglowitz, chairman of the OBA’s civil litigation section. “There is little policy justification for the status hearings to weigh against the fact that they are wasting court resources.

“Given the fiscal situation and the need to find efficiencies wherever possible, it is increasingly crucial that inefficient and unnecessary procedures are eliminated to ensure critical justice services can survive.”

Jaglowitz said those limited resources are being unnecessarily consumed in the process to reverse dismissals resulting in status hearings. And he suggests the rule is unnecessary because remedies already existed in the Rules with Rule 24 already dealing with undue delay.

For more, see "Court gives civil lawyers reprieve from dismissal threat."

  • John Legge
    Master Short is plainly correct. For unless Master Short is right, Rule 48 overrules Rule 1.04. That could never happen. Any more than:

    1. Absolute Limitation periods to protect fraud, not victims;
    2. Gutted Discoverabilty Rule to protect spoliation and non-disclosure;
    3. Interim Costs a trivial tax-deductible irrelevancy to insurers and institutions;
    4. Interim Costs an after-tax litigation ender for the working and middle classes;
    5. Three to 6 months to get a motion date ...

    Short and 8 more just like him for the SCC. Yesterday. Wouldn’t be soon enough.
  • Norma Priday
    Rule 48, and its various components were the subject of three days of hearings before the Court of Appeal during the week of November 21, 2012. The decision remains reserved. One hopes that it will provide the guidance required to end the use of court time to deal with issues which the cases below demonstrate are not only unclear, but conflicting. It is presumed that the decision on those cases (there were three heard consecutively by the same panel) will bring finality to this debate.

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