by LAWPRO

Today, February 28, 2024, the Ministry of the Attorney General of Ontario has informed the public and the profession that administrative dismissals of Superior Court civil actions that have not been set down for trial within 5 years, or have been struck off a trial list and have not been restored within 2 years of being struck, will recommence on May 13, 2024.

Administrative dismissals for Small Claims Court, Divisional Court, and family matters will also resume on May 13, 2024. Please consult the relevant court rules for direction on handling dismissals of these types of matters. The contents of this notice only address Superior Court civil actions.

The administrative dismissal procedures and timelines under the court rules were suspended from March 16, 2020, to September 13, 2020, due to the COVID-19 pandemic (the “COVID Suspension”).

While the suspension of the administrative dismissal timelines ended on September 13, 2020, Ontario courts directed court staff to continue to refrain from issuing administrative dismissals to prioritize court resources. This direction will end on May 13, 2024.

As such, Superior Court civil actions not yet set down for trial that were commenced prior to November 12, 2018, and to which Rule 48.14 of the Rules of Civil Procedure apply, will be subject to administrative dismissal beginning May 13, 2024. This takes into account the 182-day COVID Suspension of the administrative dismissal timelines.

Note: Rule 48.14 does not apply to Commercial List matters, class actions, or where the plaintiff is under a disability.

What to do if your case will soon be at risk of administrative dismissal

For cases at risk of administrative dismissal in the near future, and that have not previously been set down and struck from the trial list, a dismissal can be avoided if a party:

  • files a consent timetable and draft order at least 30 days prior to the dismissal deadline of 5 years + 182 days after commencement;
  • sets the action down for trial; or
  • brings a motion for a status hearing.

If an action has been previously set down and struck from the trial list, it is subject to administrative dismissal 2 years after being struck. This dismissal can be avoided by restoring the action to the trial list by way of a motion, bringing a motion for a status hearing, or filing a consent timetable within 30 days of the two-year anniversary of when the action was struck from the trial list.

Remember that there are risks involved with setting an action down for trial prematurely (such as restrictions on motions and examinations for discovery), and lawyers should give full consideration to their necessary timetable before setting a trial date.

What to do if you cannot file a consent timetable and draft order

Lawyers with pending cases where the deadline for filing a consent timetable and draft order has passed should immediately inform their client that their case is at risk of being administratively dismissed and seek instructions.

If the deadline for filing a consent timetable has passed, or if the parties cannot otherwise agree to proceed with a consent timetable, an administrative dismissal may be avoided by bringing a motion for a status hearing or setting the action down for trial.

If a motion for a status hearing is needed, lawyers should report to LAWPRO unless the opposing parties promptly confirm that they will not be opposing the motion or will be consenting to the motion. Lawyers bringing an unopposed motion or a motion on consent for a status hearing should note the following:

  • such motions should be commenced on a timely basis since you can only bring a motion for a status hearing if the action has not yet been dismissed (courts have typically refrained from dismissing actions when a motion for a status hearing is pending);
  • be prepared to provide an explanation for any material delay in the litigation and to establish that the opposing parties in the litigation have not been prejudiced by the delay;
  • the motion materials should include a consent timetable (if the motion is on consent), an affidavit of a lawyer who was directly involved with the litigation, and an affidavit of the client;
  • the affidavit of the lawyer should set out the procedural history of the litigation and attempt to explain any significant delays in the history of the litigation (avoid including information that is subject to privilege such as the content of your communications with your client);
  • the affidavit of the lawyer should also specifically indicate that the defendant does not appear to have been prejudiced by the delay and explain that all relevant evidence has been preserved and all necessary witnesses are alive, competent, and available to give evidence (if true);
  • the affidavit of the client should indicate that the client had an ongoing intention to proceed with the action, assuming this is true (in other words, the client did not at any point intend to abandon the action);
  • it is preferable that the motion be brought orally rather than in writing so that any concerns of the judge or associate judge can be addressed;
  • if the judge or associate judge gives the impression that they may dismiss the motion, request an adjournment on the basis that the matter needs to be reported to LAWPRO and LAWPRO may wish to be involved with the motion.

To report a claim go to lawpro.ca/claims.

If you are unsure if your matter needs to be reported as a claim, email [email protected] with details of your circumstances.

General tips for avoiding administrative dismissals

All litigators should re-familiarize themselves with Rule 48.14 for Superior Court civil actions and the impact of the 182-day COVID Suspension on the standard 5-year timetable of their action. Lawyers should ensure their calendar and reminder system is updated and accurate, and will provide sufficient time to take steps to avoid an administrative dismissal, including filing a consent timetable and draft order at least 30 days prior to the relevant dismissal timeline.

If you have additional questions regarding a case that is now eligible for dismissal, or will become eligible for dismissal on or before May 10, 2024, please contact the MAG Contact Centre at 1-800-980-4962 or 647-438-0403.

Categories: Civil Litigation