by LAWPRO

civil-litigation

LAWPRO reminds Ontario lawyers that Friday, December 2, 2016 is the deadline to file a consent timetable and draft order to prevent a dismissal under Rule 48.14 of pre-2012 matters. See below for more details.

Answers to common Rule 48.14 questions

In a case decided last week,  Daniels v. Grizzell, 2016 ONSC 7351, Associate Chief Justice Marrocco provided some comments that clarify the interpretation of Rule 48.14 and give clear answers to a number of the more common questions LAWPRO has received from Ontario lawyers. The clarifications provided are as follows:

  1. Where a consent timetable is submitted to the registrar at least 30 days from the dismissal date, a draft order must also be included [para. 5].
  2. If a party brings a motion before the Rule 48.14 dismissal date, the matter shall not be dismissed for delay until the motion is heard, even if the matter is heard after the dismissal date [para. 7].
  3. A Rule 48.14 dismissal for delay by the Registrar shall not contain a costs order [para. 8].
  4. Rule 24.05.1(1), which provides that a party can seek costs on a matter dismissed for delay, does not apply to a matter dismissed under Rule 48.14 [para. 9].
  5. Rule 48.14 does not apply to case managed actions [para. 10]. (e.g., class actions)
  6. Rule 48.14 does not apply to matters on the Commercial List [para. 10].
  7. Rule 48.14 applies to proceedings commenced as an action [para. 11]. Estates and other matters commenced by application are not subject to the Rule, while those commenced by action are.
  8. Rule 48.14 does not apply to applications that are converted to actions [para. 11].
  9. Rule 48.14 does not apply to actions that are stayed [para. 12].

Referencing the plainly stated points in the endorsement, paragraph 13 notes that Rule 48.14 is intended to keep court information current (i.e., remove inactive matters from court lists) and that it should not be interpreted in a way that makes it a trap for the unwary).

Reminder for defence lawyers

While not addressed in the Daniels v. Grizzell decision, defence lawyers are reminded that based on a plain reading, Rule 48.14 also applies to third party actions. Defendants who have commenced a third party action should tickle relevant Rule 48.14 dates.

December 2 and December 31, 2016 deadlines for pre-2012 matters

The deadline to file a consent timetable and draft order to extend the Rule 48.14 dismissal date on pre-2012 matters is this Friday, December 2, 2016. LAWPRO encourages all lawyers to take immediate action to ensure their pre-2012 matters are either resolved, set down, or filed with a consent timetable and draft order.

If you cannot resolve, set down, or file a consent timetable on a pre-2012 file, then you will need to bring a motion for a status hearing before December 31, 2016. However, if you anticipate or know that the status hearing will be contested, please contact LAWPRO as you have a potential claim. Early notice will hopefully allow the opportunity to repair potential claims – and avoid the $10,000 increase in deductible that will apply if a dismissal is not set aside.

See these Rule 48 Dismissal FAQs for the answers to the most common questions we are hearing from Ontario lawyers.

Matters commenced after January 1, 2012

Remember, on a rolling basis beginning January 1, 2017, matters commenced on or after January 1, 2012 will be automatically dismissed five years after they were commenced. Please be proactive and keep your files moving along. Consider using LAWPRO’s Rule 48 Transition Toolkit (practicepro.ca/Rule48), which provides advice and tools lawyers and law firms can use to lessen the risk of a claim under Rule 48.