After a hiatus during the COVID-19 pandemic (“COVID”), on May 13, 2024, Registrars of local Ontario courts have resumed sending out notices entitled Order Dismissing Action for Delay – Form 48D (“Dismissal Notices”). A Dismissal Notice signifies that a party’s action has been administratively ‘terminated’. The court system has determined, by reference to the action’s start date, that it is beyond its ‘best before’ date.
Rule 48.14(1) of the Rules of Civil Procedure (the “Rules”) essentially provides that civil court actions have a ‘lifespan’ of five years. Within that period, the action must: be resolved by some means (e.g., trial or settlement) or have finished the necessary procedural steps, with a trial requested. Otherwise, the local Registrar is required to dismiss the action for delay. How Dismissal Notices are received is a function of what side of a claim the recipient is on. Plaintiffs (parties that start actions) are anxiously shocked. Defendants (facing claims against them) are pleasantly surprised.
Unlike jeans, cast iron pans, and kimchi, lawsuits do not get better with age. Memories fade. Documents – and even sometimes witnesses – disappear. Expert reports need to be ‘refreshed’. Legal fees and other costs continue to climb. Justice delayed is justice denied, so they say. And yet, delay in civil actions in Ontario today is rampant to the point of cliché. It can manifest itself in extraordinary waiting periods for trial and motion dates. But, more commonly, it is seen in the exasperation, worry, and frustration of litigants as to the pace of their action.
Yes, maybe latency and inertia have always plagued the progress of a court action and our justice system (and those of many other jurisdictions in and out of Canada). But, in the last decade, the problem has escalated to a crisis point. COVID has been cited as increasing the delays of the average time to dispose of a civil case (Fighting the Backlog: How are Ontario’s Courts Using Summary Processes to Address Civil Justice Delays? Suzanne Chiodo). However, it must be noted that the pre-COVID situation was not much better. The backlog in the Ontario court system was increasing by 23%, and from 2015-2019, civil cases took 37% longer to be disposed of (Ibid.).
Figuring out the causes of civil litigation delay is tough. It’s like breaking down the anatomy of a traffic jam where there’s no accident, only brake lights. There are many contributors. These include (in no special order): one party holding back others; lawyer lethargy (e.g., prioritizing, schedules); the complexity and bureaucracy of court rules; the increased presence of self-represented litigants (forced by economic circumstances, learning as they go); and, systemic challenges (availability of physical court resources, support staff shortfalls, and judicial retirements). These are only a few key factors. There are others.
Due to the many roots and causes of delay in civil actions, it is hard to combat. The concept of a five-year lifespan was introduced in January 2015, when amendments to the Rules came into force. The Civil Rules Committee and the Attorney General of Ontario wanted to put a stop to the phenomenon of sluggish actions loitering for many years with no progress and/or zombie actions vacantly haunting the system with no end in sight. The rationale is that five years should be enough time for a party to achieve finality to its action – or at least complete the steps necessary to entitle the party to request a trial from the court (i.e., setting an action down for trial).
The administrative dismissal procedures and timelines under the Rules were suspended from March 16, 2020 to September 13, 2020 due to COVID. For a period thereafter, Ontario courts unofficially directed court staff to continue refraining from issuing Dismissal Notices to prioritize court resources. But, the ‘party’ ended on May 13, 2024, when administrative dismissal resumed. As of that date, actions started on or after November 13, 2018 would be fair game for a dismissal. Since then, there have been many lawyers and parties caught by surprise when they receive Dismissal Notices.
The foregoing brief description of Rule 48.14(1) and Dismissal Notices might suggest the Rules are harsh and merciless. Note that there are many ‘wrinkles’ and exceptions that cannot be canvassed here. Some resources can be found here and here, for information only. Also, something approaching compassion can be found in the subrules to Rule 48.14(1). For example, a plaintiff can avoid a dismissal if, at least 30 days before the fifth birthday of the action, the party files a consent timetable (Rule 48.14(4)). Among other things, that timetable must be signed by all the parties to the action, identify the steps left before the action can be set down for trial, provide the dates by which the steps will be completed, and indicate a new set down date (no later than 2 years after the original deadline).
But not everyone plays nicely. Therefore, a plaintiff who can’t get agreement on a timetable can ask the court for a status hearing (Rule 48.14(5)). That request must be made before the fifth anniversary. At a status hearing, a plaintiff basically needs to convince the court that the action should not be dismissed for delay. Usually there will be affidavits (sworn written statements) filed by the plaintiff’s lawyer and the plaintiff about long held continuous intentions to pursue the claim and/or intervening circumstances that prevented timely pursuit of it. The court will either dismiss the action for delay or allow it to continue, with a short leash, on terms that are just (Rule 48.14(7)).
Plus, a nuclear option, if a plaintiff receives a Dismissal Notice, is to bring a motion to the court under Rules 37.14 and 48.14(9) for the dismissal to be set aside (i.e., for the action to be resuscitated). To convince the court of this, a plaintiff must establish: (i) a reasonable explanation for the litigation delay; (ii) inadvertence in missing the deadline of the fifth anniversary of the claim being started; (iii) that the motion was brought as soon as possible after the Dismissal Notice came to the plaintiff’s attention; and (iv) that there is no significant prejudice to the defendant arising from the delay (Habib v. Mucaj, 2012 ONCA 880 at para. 5). The court will weigh all relevant considerations and take a contextual approach, not focusing on just one criteria (Scaini v. Prochnicki, 2007 ONCA 63).
This discussion is fraught with anxiety-provoking subject matter. Plaintiffs and their lawyers shudder at the thought of the dismissal of an action before it is determined on its merits. This is only a snapshot into the complexity and considerations related to delay in a civil action and Dismissal Notices. We highly recommend you consult a lawyer regarding this subject and other matters and Rules affecting your action.
About the Author:
Kris Dixon is a litigator at Soloway Wright LLP with a focus on Construction Litigation, Commercial Litigation, Insurance Law, and Professional Malpractice claims.
He regularly represents contractors and subcontractors in navigating all manner of complex construction disputes.
DISCLAIMER: This article is for general information purposes only and is not (and should not be construed as) legal advice. The information contained herein summarizes only certain aspects of the subject matter and is not a comprehensive review of applicable law. All of the foregoing is subject to legal and accounting advice based on the particular circumstances of each potential client.
