The Applicability of Dismissal of Action for Delay to Estate Proceedings

September 24, 2015 Doreen So Continuing Legal Education, Estate & Trust, General Interest, Litigation Tags: , , , , , , 0 Comments

As of January 1, 2015, the Ontario Rules of Civil Procedure were amended such that all actions not set down for trial will be automatically dismissed within five years of their commencement.  Pursuant to Rule 48.14(1), unless the court orders otherwise, the Registrar shall dismiss an action for delay if the action has not been set down for trial or terminated by the fifth anniversary of the commencement of the action (or by January 1, 2017 if the action was commenced prior to January 1, 2012) subject to a list of statutory exceptions.

In a recent decision, the Hon. Madam Justice Mesbur found that Rules 24.01 and 48.14 in respect of a dismissal of action for delay are not applicable to the dismissal of applications.

The Applicant in Michie v. Turalinski, 2015 ONSC 5491, brought an application to require an Estate Trustee Without a Will to file a Statement of Assets of the Estate on March 17, 2011.  Notwithstanding the court ordered timetable for next steps, cross-examinations did not occur and counsels’ attempts to schedule cross-examinations appears to have ceased in or about 2012.

Ultimately, the Court ruled against the Respondent’s motion for dismissal for delay and provided the following comments in respect of the statutory authority for this relief:

[40] Ronald has framed his motion under rule 24.01 of the Rules of Civil Procedure.  That rule sets out the circumstances in which the court may dismiss an action for delay.  The rule does not apply here, since the rule applies to actions but not to applications.[14]  Since this case is an application, r.24.01 does not apply.

[41]      Ronald also relies on rule 48.14 to support his positon.  Rule 48.14 deals with the circumstances when the Registrar is required to dismiss an action for delay.  The rule was amended effective January 1, 2015, and now provides that the Registrar shall dismiss an action for delay if it has not been set down for trial within five years after the first defence is filed.[15]  Again, the rule deals with actions not applications, but even if it did, Susan’s application was commenced in March of 2011.  Five years have not elapsed since then, and thus cannot have elapsed since delivery of any response to it.  If this application were an action, rule 48.14 would not require the Registrar to dismiss it.  In any case, Ronald has never really delivered a response to the application itself, which would be equivalent to a defence.

Please click here if you are interested in our podcast of the recent Regulations amending the Rules of Civil Procedure.

Thanks for reading and for listening!

Doreen So

Leave a reply

Your email address will not be published. Required fields are marked *

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

CATEGORIES

ARCHIVES

TWITTER WIDGET