Does a judge have the authority to treat a claim as having been commenced when the court did not issue a Statement of Claim in time? Yes, according to the decision in Patkaciunas v. Economical Mutual Insurance Company, 2021 ONSC 5945 (CanLII).
There, the plaintiff sought to commence a claim against the defendant. The limitation period was to expire on June 25, 2019. The paralegal for the plaintiff attended the court office to have the claim issued. He was at the court office at 4:29 pm; well before the 5 pm closing time. The paralegal told the court staff about the urgency of the matter, and was told that he would be seen. When called to the counter, the paralegal was told by the lone clerk on duty that the computer system was shutting down at 5 pm, and the Statement of Claim could not be issued. The clerk then turned and walked away. The claim was not issued until the next day.
Justice Dunphy found that the court staff acted improperly in not issuing the claim. He went on to find that he had the inherent jurisdiction to treat as done that which the public officials had a duty to do. “The court must have the capacity to control its own processes and when a demonstrated failing in the court’s processes is proved to be the proximate cause for the apparent failure to accomplish fully a required step before the expiry of a limitation period, the court’s inherent jurisdiction extends to treating as done that which its own staff ought to have done.” He declared that the Statement of Claim be amended to show an issue date of June 25, 2019.
A useful precedent for those rare circumstances where, through no fault of your own, the court, inadvertently, due to backlog or otherwise, doesn’t get done what needs to get done.
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Last night, I attended an advance screening of RBG, a documentary focusing on the career of Justice Ruth Bader Ginsburg, a current Associate Justice of the Supreme Court of the United States. Justice Ginsburg is a long-time social rights activist and advocate well known for her work in promoting gender equality on both sides of the bench.
More recently, Justice Ginsburg has gained notoriety for frequent dissenting opinions within the context of a primarily conservative judiciary. While a dissent is, by definition, “a disagreement with [the] majority decision” (Black’s Law Dictionary) that becomes law, one should not underestimate the value of a strong dissent over time.
At provincial appellate courts in Canada, a strong dissent may be of great assistance in preparing an application seeking leave to appeal to the Supreme Court, as well as at the appeal stage if leave is granted. Dissenting opinions of the Supreme Court of Canada have been referred to as the voice of the future, with prophetic potential.
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