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This article by Nora Rock (corporate writer and policy analyst at LAWPRO) originally appeared in the August 31 issue of The Lawyers Weekly published by LexisNexis Canada Inc.

Like fossil fuels and the saber toothed-tiger, judicial patience is a non-renewable resource. We at LAWPRO are especially mindful of the limits of judicial forbearance in the context of motions to overturn the administrative dismissal of an action as permitted under Rule 48.15(1) of the Rules of Civil Procedure.

The administrative dismissal rules help relieve court dockets clogged with abandoned actions unlikely ever to progress to trial. An action risks dismissal once 180 days have elapsed since filing of the originating process without an event that meets the criteria for progress: no disposition, no trial date, no defence filing, and no filing of a motion other than a motion challenging jurisdiction.

When an action is abandoned according to this analysis, a 45-day status notice is sent advising of impending dismissal unless a qualifying step is taken. If no action is taken in response to the notice, the matter is dismissed, and the limitation period runs out, we at LAWPRO often get word… in the form of a claim.

The claim report typically comes with an accompanying plea for LAWPRO’s help to resurrect the dead action. We have, in fact, become known for our track record in setting aside these dismissals. But while we’d love to take full credit for those successful motions (we call them “repairs”), we are keenly aware that an important ingredient in our success so far has been the implicit tolerance of the judiciary, when evaluating the evidence and law presented in support of the motion.

Judicial forbearance often comes with a side helping of admonishment. Where written reasons are provided in these successful motions, they frequently contain a warning that a harder line will be taken next time around. The message implicit in these warnings is that only so many dismissed actions – especially those in which the reasons for the delay are not novel – will be revived before the court loses patience.

Because we are involved with a significant number of these motions, we are well-placed to observe the erosion of judicial patience. That erosion is underway. And we are frustrated to report that there has been an increase of late – and not the hoped-for decrease – in the number of requests we have received to repair these files.

Dale Herceg, senior claims counsel at LAWPRO, noted in “Beware the Ides of Rule 48” (from the Fall 2011 issue of LAWPRO Magazine), that there is a reasonable explanation, in a few cases, behind the delay that triggers the dismissal. For example, where a plaintiff receives a status notice in a case where the defendant is an insurance company, even if the plaintiff acts promptly to urge the defendant to defend, 45 days is scant time for the adjuster to recommend to his or her principal that counsel be appointed, have that recommendation accepted, and have counsel chosen and instructed in time to file an intent to defend. In other cases, the lawyers for the parties involved may have problems obtaining instructions from their clients. This is not only true where clients are hard to locate, but also happens when negotiations are underway and there is optimism that litigation will be avoided.

But even in these “understandable delay” cases, the reality is that the fact of the delay is either known or – with good practice management procedures in place – knowable. The consequences of the delay are also knowable. The effort required to avoid those consequences is modest: Faced with a pending dismissal, the lawyer can either prod the opponent into filing a notice of intent to defend, or draft a summary judgment motion. In other words, unless the responsible lawyer (and his or her staff) are completely incapacitated by some calamity, administrative dismissal claims are avoidable. We at LAWPRO know this, and the judges and masters who hear these motions know this. Lawyers simply cannot count on limitless tolerance for “inadvertent” abandonment of litigation files. Failure to take Rule 48 seriously can easily leave a lawyer holding the bag.

Don’t want to be that lawyer? Dale Herceg and Domenic Bellacicco – director of LAWPRO’s New Claims Unit and author of a 2009 LAWPRO article about handling a Rule 48 dismissal – offer four dead-simple tips for keeping an action alive:

  1. Diarize the 180-day period, and ensure that your system provides an action prompt well in advance of the deadline. Don’t rely on receipt of status notices as your prompt. These have been known to go to the wrong lawyer, to disappear in the right lawyer’s inbox, to be misfiled… you get the picture.
  2. Instruct staff to bring status notices to your immediate attention.
  3. As soon as you’re prompted of the approaching deadline, advise your client, in writing, of the obligation to move the matter forward (and of the consequences of not doing so).
  4. If you don’t get instructions from your client, take immediate steps to get off the record.

Prevention methods are straightforward; repair less so. For more information about administrative dismissals, see our resources on the topic at practicepro.ca.

Categories: Civil Litigation