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Rule 48 on calendar

Rule 48 claims arise when it is alleged that the dismissal of a claim was due to the lawyer’s negligence with respect to either a defended (Rule 48.14) or an undefended (48.15) action. Many of these claims have been very costly for LAWPRO. While certain Rule 48 claims can be repaired by speaking with opposing counsel or court staff, in larger centres (Toronto especially), repairs require a motion to set aside the dismissal and reinstate the action. Not only do these repair efforts consume significant defence costs, but success is not guaranteed. Both the courts and LAWPRO are losing patience with what is almost always an easily preventable error.

LAWPRO urges lawyers to take every possible precaution against claims based on the administrative dismissal of an action.

Avoiding these claims means, first, understanding how these claims happen; and second, taking practical, active steps to protect against them.

How Rule 48 claims happen

Actions are dismissed when plaintiffs, for whatever reason, lose sight of litigation deadlines on a matter and then don’t receive or fail to act on a status notice sent by the court. Here at LAWPRO we are uniquely placed to observe how these errors happen.

In a few cases, the reason for the oversight is administrative or clerical. The tickler system doesn’t function properly and the timelines for the matter are missed and/or the resulting status notice is missed, misinterpreted, or is lost in the mail. Better management of office procedures and systems (for example, the use of the “inactivity” reports or warnings from account software) and better staff training can help with this cause.

Good office management also means careful supervision of juniors: On some claims, a senior lawyer who is ultimately responsible for a file delegates it to a junior who is overwhelmed with workload and is too embarrassed or intimidated to speak up.

When the junior lawyer misses deadlines, the senior lawyer is not supervising him or her closely enough to notice.

On other claims, the limitation period goes by while the plaintiff is waiting for a medical prognosis, discoveries are proceeding, or there are active settlement discussions occurring.

A very dangerous scenario arises when a lawyer’s unexpected hiatus from legal practice (for example, due to an illness or family emergency) leads to the ball being dropped on several files triggering a “cluster” of administrative dismissals. When we see these clusters it appears that the departed lawyer’s active files are not being monitored by a staff person or transferred to a colleague.

Finally, sometimes the result of a status hearing is the imposition of a timetable for progress on the plaintiff ’s lawyer. We see claims, in some instances, where the matter is dismissed when the lawyer did not or could not meet the timetable.

Eight practical precautions to avoid Rule 48 claims

Administrative dismissal claims are almost universally preventable. Take these eight steps for your best chance at avoiding a claim:

  1. Ensure that your tickler system is effective, is being populated properly, and that staff have been well-trained in the use of the system.
  2. Consider using your tickler system or the “inactivity reports” or warnings that many law office accounting or practice management programs have to identify files in which nothing has happened for a specified period of time.
  3. Don’t assume that you can wait to take prescribed procedural steps in an action while awaiting completion of medical reports, discoveries, or settlement negotiations. Instead of relying on an opponent’s informal or implied waiver, either meet litigation deadlines or obtain a written and signed “tolling” or “standstill” agreement confirming the parties’ mutual agreement to extend time.
  4. Train staff to recognize status notices, and to bring them to the attention of counsel without delay. Supervise junior lawyers appropriately; ensure that they understand the operation of Rule 48, and pay attention to signs that suggest they are overwhelmed and at risk of missing deadlines.
  5. Be prepared for unexpected work interruptions. Consider the possibility that an illness, injury or other contingency could cause your practice to be suddenly interrupted for a significant amount of time. Who would handle urgent client matters in those circumstances? Would that person be able, when reviewing your files, to identify matters requiring prompt action?
  6. When time is passing and you can’t get instructions from the client or a replenished retainer, you can’t just let the file sit in abeyance. The court will be monitoring even if your client and the other side are content to let the matter slide. If you don’t consider the file from this angle and the matter is eventually administratively dismissed, all of a sudden the client may show great interest in his or her cause of action, and effectively pursue it through an action against you. Knowing when to get off the record is one key to practising safely.
  7. As there is the potential for a malpractice claim, contact LAWPRO promptly for advice if you are required to attend at a show cause hearing.

Nora Rock is corporate writer and policy analyst at LAWPRO.