Tag: Rule 48
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):
- 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.
- 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.
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.
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.
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.
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.
Thank you for reading.