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Civil Litigation

Overturned dismissal for delay a warning shot to lawyers

A recent decision involving a case that was dismissed for delay should serve as a reminder to lawyers to impose a robust “tickler system” at their firm, says Brampton civil litigator Edwin Upenieks.

In one of the few reported decisions dealing with the new administrative dismissal regime in Rule 48 of Ontario’s Rules of Civil Procedure, Ontario Superior Court Master Donald Short restored a company’s negligence action against a solicitor that was automatically dismissed by the court registrar on the fifth anniversary of its launch in 2013.

Since 2017, amendments to Rule 48 have allowed for the automatic dismissal of any claim that has not been set down for trial within five years of its launch. Although it’s actually longer than the old two-year deadline, the rule changes also did away with the status notice that parties used to get from the court’s registrar warning them that the case would be dismissed for abandonment, which served as a kind of safety net for lawyers whose deadline-warning systems let them down.

“No lawyer wants their name to appear on a decided case where an administrative dismissal is upheld, and you don’t even want your name on one where counsel was successful in having it restored,” says Upenieks, partner with Lawrence, Lawrence, Stevenson LLP. “From the prevention standpoint, lawyers need to ensure they have a strong tickler or reminder system in place. The best practice would be to have a reminder not only within your department but also with another, such as from accounting, for example.”

But not just any reminder will do, says Upenieks.

“There’s not much point setting a reminder for the day the limitation or time period expires. You need sufficient lead-up time to complete any necessary steps,” he tells AdvocateDaily.com.

Files with low levels of activity, in particular, should be targeted for review, says Upenieks, who suggests that lawyers check in on the status of their files at least once annually, and then follow up with written correspondence to opposing counsel.

“That would apply for plaintiff’s counsel, but also defendant’s counsel because if there’s one lesson from this case, it’s that your conduct on the file is going to be examined under a microscope,” he says. “You want to have a letter there in your file to the opposing side that sets out your position, and have it there on a regular basis.”

The case dates back even further than its 2013 launch, with roots in a 2006 action advanced by the defendant law firm on behalf of the plaintiff company, its then-client in a disputed property deal.

When the 2006 action was dismissed for delay, the company opened its own negligence proceedings against the law firm in 2013, only for that action to also be automatically dismissed five years later under the new Rule 48.

In its motion to have the second dismissal for delay set aside, the company claimed the case was complicated by settlement discussions and a dispute over the scope of releases to be signed by the parties following a partial settlement.

According to the decision, a dispute over documents allegedly held by the defendant law firm then interfered with the company’s ability to advance the case beyond the pleadings stage. Despite repeated follow-ups from the law firm’s counsel, a sustained period of silence ensued after the lawyer responsible for the day-to-day carriage of the plaintiff’s case left his firm, until the action’s ultimate dismissal in April 2018.

The plaintiff claimed that it had inadvertently overlooked correspondence from the defendant warning of the approaching deadline, and said it would have responded earlier had a clerk’s maternity leave not resulted in faulty diarizing.  

Noting the case was a “close call,” Short decided to restore the action, finding there was “no sense in creating yet another potential case within a case within another related action flowing from the failure to set the action down on a timely basis.”

Instead, he set a tight timetable, requiring the matter to be set down for trial by the end of 2019.

“If either side misses another deadline, without the other side’s acquiescence, I would be inclined to dismiss the action, without costs either way,” Short added.  

“You always have a tension between a party’s right to have their day in court and the rules and timetables ensuring you have a timely resolution of disputes,” Upenieks says. “Basically, the court here has erred on the side of giving litigants their day in court.”

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