Tag: administrative dismissal
Rule 48.14 Interpreted! When will the Registrar Dismiss an Action for Delay? How Does it Apply to Estate Matters?
As recently as November 25, 2016, the Associate Chief Justice of the Superior Court, the Hon. Justice Marrocco, released a written endorsement in Daniels v. Grizzell, 2016 ONSC 7351, interpreting portions of Rule 48.14 since administrative dismissals may now occur from and after January 1, 2017.
The Registrar will Not Dismiss for Delay When…
According to the Hon. Justice Marrocco, “the Registrar will not dismiss an action for delay if the following events take place at least 30 days before the expiry of the applicable period:
- a party files a timetable signed by all the parties; and
- a party files a draft order establishing the timetable;
In addition, if a consent timetable signed by all the parties, and a draft order is filed, the Registrar shall not dismiss the action pursuant to Rule 48.14.”
Motion for Status Hearing and Motion to Set Aside the Dismissal
If the parties are unable to reach a consent, a motion for a status hearing may brought before the expiry of the applicable period pursuant to Rule 48.14(5). The Hon. Justice Marrocco clarified that “the Registrar shall not dismiss the matter until the motion is heard even if the matter is heard after the dismissal date prescribed by the Rule.”
Moreover, “the dismissal of an action by the Registrar can be set aside under Rule 37.14”.
Rule 48.14 Does Not Apply to Applications and Applications Converted to Actions
As it pertains to those of us engaged in estates, trusts, and substitute decision making matters, Rule 48.14 “does not apply to proceedings commenced by an application. Accordingly, estate matters which are commenced by way of an action are subject to the Rule; estate matters commenced by application are not. For practical reasons grounded in the coding of actions and applications in the court’s information management system, the application of Rule 48.14 is determined at the time the proceeding is commenced. For the same reason, applications which are converted to actions are not subject to Rule 48.14.”
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Significant changes to Rule 48 of the Rules of Civil Procedure, specifically with regard to administrative dismissals, came into force on January 1, 2015. The ramifications of those changes will become of critical importance, especially in the coming months.
Under the old Rule 48.14 and Rule 48.15 (both of which were revoked), actions were dismissed because they were not set down for trial 2 years after a Statement of Defence was filed or because a Statement of Defence was not filed in time. However, prior to an administrative dismissal, lawyers were given the opportunity to rescue cases, as they received a notice from the court to attend a status hearing.
The new Rule 48.14 (Rule 48.15 was not replaced) states that actions must be set down for trial within 5 years of being commenced, and any actions commenced before January 1, 2012 will be automatically dismissed on January 1, 2017. Furthermore, any actions struck from the trial list must be restored within 2 years of being struck [Rule 48.14(1)].
Under the new rule, it is possible to get an extension and obtain an extra 2 years – if a party files a timetable and draft order at least 30 days prior to the dismissal deadline. If the parties do not consent to a timetable, one party can bring a motion for a status hearing before the dismissal deadline.
Given that the court will no longer provide notice of an administrative dismissal, lawyers will have to be diligent in reviewing their files to ensure that any actions commenced prior to January 1, 2012 are not automatically dismissed on January 1, 2017. And given that a timetable and draft order must be submitted 30 days prior, lawyers should begin conversations now in order to meet the deadline of December 2, 2016. Furthermore, lawyers will need to make sure their tickler system is updated to include the new time limits for actions commenced after January 1, 2012. Finally, a Statement of Claim (Form 14A) and a Notice of Action (Form 14C) must now contain the following wording: “TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has not been set down for trial or terminated by any means within five years after the action was commenced unless otherwise ordered by the court.”
While the new Rule 48.14 provides potential pitfalls for lawyers, it is a good opportunity to update file procedure systems and a welcome reminder of the need to proactively manage client files.
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