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Bolohan v. Hull, 2012 ONCA 121 (rule 48.14 – action not on trial list)

Judgment Released: February 22, 2012   Link to Judgment

The test for dismissal under the status hearing provisions of Rule 48.14 is that the plaintiff bears the burden of demonstrating that there is an acceptable explanation for litigation delay and that, if the action is allowed to proceed, the defendant will suffer no non-compensable prejudice. The focus of the inquiry is the plaintiff’s conduct, but the conduct of the respondent in the litigation can have a bearing on the assessment of the reason for the delay and on the exercise of the court’s discretion under Rule 48.13. Rule 24, which addresses motions to dismiss for delay, has no bearing on Rule 48.14 status hearings. 

A party seeking to dismiss an action at a Rule 48.14 status hearing does not usually present affidavit evidence. The usual practice is for the initial status hearing to proceed on the basis of oral submissions. If the judicial officer conducting the status hearing forms the view, on the basis of the oral submissions, that the action is vulnerable dismissal for delay, ordinarily a full hearing will be ordered on affidavit evidence.

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Bolohan v. Hull, 2012 ONCA 121 (rule 48.14 – action not on trial list)

Kostruba v. Pervez, 2011 ONSC 2411 (S.C.J.) (Rule 48.14 – action not on trial list)

Judgment Released: April 27, 2011   Link to Judgment

With the advent of the new Rules and recent directions from the court, there is an enhanced emphasis on counsel to take greater ownership and responsibility on behalf of their clients in conducting their litigation in as efficient and diligent manner as possible. The purpose of a status hearing is to find out why the case in question has not been set down for trial within the two-year period prescribed by the Rules and to ensure that an order is made to facilitate steps to move the case forward.  It may be that in the clearest of cases where there is a determination of actual prejudice to the defendant; a history of flagrant breaches by the plaintiff of various court orders; and an absence of any explanation for the delay, that the drastic order of dismissing an action at the first status hearing may be appropriate.  However, absent clear and extraordinary circumstances, it would not be appropriate to dismiss an action at the first status hearing. The threshold for a plaintiff to show cause at a first status hearing is not an onerous one and a liberal approach ought to be applied.  As long as there is no tangible prejudice established and some reasonable explanation provided by the plaintiff, a court ought to consider the onus met.

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Kostruba v. Pervez, 2011 ONSC 2411 (S.C.J.) (Rule 48.14 – action not on trial list)

Stephenson’s Rental Services Inc. v. 2047330 Ontario Limited, 2010 ONSC 4231 (Master) (Rule 48.14 – action not on trial list)

Judgment Released: July 29 2010  Link to Judgment

On a motion to set aside an order of the registrar, dismissing the action as abandoned, the Court noted that the notice did not comply with the requirements of the rules as “it is a precondition to the jurisdiction of the registrar to issue an order dismissing an action where a defence has been filed, that a notice setting out the factors in Rule 76.06 (2)  be given to a party at least 45 days prior to the making of the order.” 

In allowing the relief sought and setting aside the dismissal order, the Court cautioned that “This case might otherwise only stand as an historical anomaly, but for the provisions now added to the Rule 48.  If no defence is filed, new Rule 48.15 continues the provision for dismissal but now a period of 180 days runs from when the originating process was issued. As a consequence, counsel will be well advised to diarize a date in advance of the six months anniversary from the start of every matter.  This will facilitate the timely bringing of any motion to extend the time for service, and if necessary, taking  appropriate steps to avoid the registrar’s administrative dismissal.  Given the impact of the two year period contemplated by the Limitations Act to commence a proceeding, and the apparent demise of the doctrine of special circumstances, a failure to take proactive steps before the 180 day point to keep the proceeding alive, may result in unintended and unfortunate consequences in situations where the plaintiff has had no notice of the action until perhaps three years “after the injury, loss or damage had occurred”.

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Stephenson’s Rental Services Inc. v. 2047330 Ontario Limited, 2010 ONSC 4231 (Master) (Rule 48.14 – action not on trial list)

Jakobsh v. Liberal Party of Canada, 2010 ONSC 4191 (S.C.J.) (Rule 48.14 – action not on trial list)

Judgment Released:  July 26, 2010  Link to Judgment

The action was brought under Rule 76 in March 2008.  A notice of dismissal was issued on July 28, 2008, and the action was dismissed by the Registrar on November 12, 2008, for failure to set the action down for trial within 150 days from filing of the first defence.  A motion to set aside the Registrar’s dismissal was brought in March 2010.  In setting the dismissal aside, the Court noted that “…since January 1, 2010, defended Rule 76 cases are now governed by Rule 48.14, which provides that dismissal orders are not to be made by the Registrar unless more than two years has passed from the filing of the first defence. This action has only recently passed that deadline. The proposition that Gagne [Gagne v. Toronto Police Services Board, [2008] O.J. No. 1474] and Miller Thomson [Miller Thomson Pouliot LLP v. 2088343 Ontario Ltd., [2009] O.J. No. 3750] establish that a stricter test applies to setting aside dismissal orders in Rule 76 actions must be tempered by the obvious policy change reflected in the January 1, 2010 Rules amendments.”

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Jakobsh v. Liberal Party of Canada, 2010 ONSC 4191 (S.C.J.) (Rule 48.14 – action not on trial list)

Jaff v. Cowan, 2010 CanLII 5546 (Rule 48.18 – action not on trial list; Rule 50 – pre-trial conference)

Judgment Released:  February 8, 2010  Link to Judgment

On a motion to set aside an administrative dismissal by a registrar following the plaintiff’s failure to file its settlement-conference brief in the time prescribed by Rule 77.14 (for the plaintiff, 10 days before), the Court noted that Ottawa’s local procedure respecting administrative dismissal was replaced on January 1, 2010 with the province-wide amendments to Rules 48 (status hearings – action not on trial list) and 50 (pre-trial conferences).  The Court noted that “under the new procedure, non compliance by a plaintiff with the pre-trial requirements of Rule 50 may result in an order striking a matter from the trial list and subsequently in a status notice and dismissal of the action by the registrar under Rules 48 and 24.”

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Jaff v. Cowan, 2010 CanLII 5546 (Rule 48.18 – action not on trial list; Rule 50 – pre-trial conference)