by Kathryn Shani

civil-litigation

We are all aware of the March 20, 2020 Emergency Order where the Ontario government suspended the running of most provincial limitation periods and procedural time periods retroactively to March 16, 2020 due to the COVID-19 pandemic.

One of the effects of this suspension period is that Ontario courts ceased issuing administrative dismissals of actions even if the action had not been set down for trial by the fifth anniversary of the action’s commencement.

At this point, we do not know when or how Ontario courts will begin to administratively dismiss actions once again.

It is best practice to look at your files to see whether the 5-year deadline to set the action down for trial is coming up or has already passed, as there may be ways to prevent the action from being administratively dismissed.

5-year Deadline Approaching

If you find yourself with at least 30 days before the dismissal deadline, under Rule 48.14(4), a timetable for next steps and a draft order can be filed with the court, with the consent of all parties. This will prevent the action from being administratively dismissed.

If all parties do not consent to a timetable, a motion for a status hearing should be brought as soon as possible before the dismissal deadline (Rule 48.14 (5-7). If there are any remaining steps that must occur before the action is set down, the action should not be set down for trial in leu of a status hearing.

The actual status hearing motion need not be heard before the dismissal deadline. As long as a Notice of Motion for a status hearing is served and filed before the dismissal deadline, it is less likely that the court will administratively dismiss the action.

5-year Deadline Passed

First off, determine whether you have the benefit of the extra 26 weeks provided by the suspension period. If so, it may be that your 5-year deadline has not yet passed and you can avail yourself of the options outlined in the previous section. However, it is best practice to not rely on the extra time provided by the suspension period and react as if the pre-suspension period 5-year deadline applies.

If the 5-year deadline has passed, it is still best practice to bring a motion for a status hearing/to extend the deadline to set the matter down as soon as possible. The court is less likely to administratively dismiss the matter where there is a pending motion.

Resources

Download the practicePRO Rule 48.14 checklist and File Progress Plan to help avoid facing a dismissal.

Please contact LAWPRO as soon as you are aware of a dismissal deadline having passed or if it is clear that there will be a contested status hearing.