Beware the “too quiet” file (and Rule 48)
If you are lucky enough to have a busy practice, you may welcome the brief respite you get when a legal matter goes temporarily dormant. There are three rules for taking advantage of these lulls, however:
- first, any such periods must in fact be brief and temporary;
- second, you must understand the reason for the pause (and inform the client of the reason);
- and third, you must be aware of how long of a pause in the action is too long.
In other words, you can only allow files to go quiet if you maintain an up-to-date and accurate understanding of the status of your matters relative to the relevant deadlines.
Why? Because Rule 48 of the Ontario Rules of Civil Procedure permits the court (with notice) to dismiss an action for delay under specified circumstances; for example, where “an action in which a defence has been filed has not been placed on a trial list or terminated by any means within two years after the first defence is filed”.
These dismissals do happen, and when they do, they often result in claims against a lawyer. Defending administrative dismissal claims (and getting the action reinstated to the trial list) can be expensive and difficult: in a nutshell, plaintiffs must prove the absence of prejudice AND a legitimate reason for the delay. “Forgetting” about a file due to an absence of pressure from the client isn’t reason enough.
Because these claims are generally avoidable, LAWPRO has imposed an additional deductible of $10,000 for these claims in circumstances where the action has not been set aside as a result of steps taken by or under the direction of LAWPRO.
Want to avoid these additional deductibles and – more importantly – the claims themselves? Perform a regular overview of the status of all of the matters for which you are responsible, instead of just letting the squeaky wheels dictate your practice priorities.
For more about avoiding administrative dismissal claims, see our most recent articles about Rule 48: “Plaintiff counsel beware: It is now easier to dismiss an action for delay” by Debra Rolph; and “Don’t be part of the administrative dismissal claims spike” by Nora Rock.