Tag: Dismissal

01 Dec

Rule 48.14 Interpreted! When will the Registrar Dismiss an Action for Delay? How Does it Apply to Estate Matters?

Doreen So Continuing Legal Education, Estate & Trust, General Interest, In the News, Litigation Tags: , , , , , , , , 0 Comments

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:

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  • 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.

Thank you for reading!

Doreen So

 

29 Nov

Rule 48.14: Calculating the New “Best Before” Expiry Date

Doreen So Continuing Legal Education, General Interest, Litigation Tags: , , , , , , 0 Comments

In a prior blog, Suzana Popvoic-Montag blogged about the “Changes to Rule 48” and, specifically, with regard to the new dismissal of action for delay.

The phrase “the expiry of the applicable period” is repeated in the various subrules to Rule 48.14 and we want to take this opportunity to illustrate the meaning of this particular phrase.  This phrase is important because it pertains to when an action may be automatically dismissed by the Registrar pursuant to Rule 48.14(1).

Essentially, going forward, actions are given five years from the date of commencement before they may be dismissed for delay by the Registrar. “The expiry of the applicable period” is the expiration date that is referred to in Rule 48.14(1), in which,

48.14 (1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):

  1. The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017.
  2. The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the later of the second anniversary of being struck off and January 1, 2017.

Exjonmp7tpgkample 1:

The expiry of the applicable period for an action commenced on the date of this blog, i.e. November 29, 2016, will be November 29, 2021.

 

 

 

Example 2:

The expiry of the applicable period for an action commenced on the date Rule 48.14 came to force and effect, i.e. January 1, 2015, will be January 1, 2020.

Example 3:

The expiry of the applicable period for an action commenced on the date the Winter Olympic games began in Vancouver, i.e. February 12, 2010, will be January 1, 2017.

This is the case because January 1, 2017 is later than the fifth anniversary of an action commenced on February 12, 2010, whereas the fifth anniversary of the commencement dates in examples 1 and 2 are later than January 1, 2017.

Therefore, it is extremely important to keep in mind that any actions commenced before January 1, 2012 may be dismissed by the Registrar on January 1, 2017.

Thanks for reading and, for those of you nostalgic for the Vancouver 2010 Winter Olympics, click here for the opening ceremony highlights.  Also click here for a handy, online date calculator.

Doreen So

15 Sep

Order to Continue – Continuing an Action commenced by the deceased

Stuart Clark Executors and Trustees Tags: , , , , , , 0 Comments

You are the Estate Trustee of an estate. In going through the Deceased’s personal belongings, you become aware that shortly prior to the Deceased’s death they had commenced a lawsuit, and that it appeared that such a lawsuit was still before the court. As you are the Estate Trustee of the estate, you begin to question whether it now falls to you, as the estate’s representative, to continue the lawsuit on behalf of the Deceased, and what steps, if any, are you required to take?

The death of a party during a court proceeding is considered a “transmission of interest” in accordance with the Rules of Civil Procedure, insofar as the interest of the party who has died has now been transferred to their Estate Trustee (or other duly appointed individual in accordance with the Rules of Civil Procedure). In accordance with rule 11.01 of the Rules of Civil Procedure, when there is a transmission of interest at any stage of a proceeding (whether as a result of the death of a party or otherwise), the proceeding is automatically stayed as against the party whose interest has been transferred. To this effect, upon the death of the individual in our example, the proceeding which they had commenced was automatically stayed as it relates to them.

Order to Continue
“As you are the Estate Trustee of the estate, you begin to question whether it now falls to you, as the estate’s representative, to continue the lawsuit on behalf of the Deceased, and what steps, if any, are you required to take?”

In accordance with rule 11.02 of the Rules of Civil Procedure, in order for the proceeding to continue on behalf of the deceased individual, an “Order to Continue” must be obtained. To obtain the Order to Continue, the party to whom the interest has been transferred (i.e. the Estate Trustee) must file with the registrar an affidavit verifying the transmission of interest, together with a requisition. Upon the issuance of the Order to Continue, it must be served on all parties.

Notably, in accordance with rule 11.03 of the Rules of Civil Procedure, if an Order to Continue is not obtained within a “reasonable” amount of time following the transmission of the interest, a defendant may move to have the proceeding dismissed for delay. To this effect, if it is the intention of the Estate Trustee to continue the proceeding on behalf of the estate, it is important that they obtain the Order to Continue as soon as possible following the Deceased’s death, as otherwise they may risk the proceeding being dismissed for delay.

As with any matter regarding the administration of an estate, it is important that the Estate Trustee receive competent legal advice concerning the proceeding before deciding whether to continue it on behalf of the estate. While there could be cost consequences to the estate for not continuing with the proceeding, there is certainly no obligation that the Estate Trustee continue the proceeding on behalf of the estate if they consider it unwise to do so. Issues such as whether the proceeding has any merit, and exposure to cost consequences, are important factors for the Estate Trustee to consider.

Thank you for reading.

Stuart Clark

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