by LAWPRO

Please note that administrative dismissals resume on May 13, 2024, for Superior Court civil, Small Claims Court, Divisional Court, and family matters.

The contents of this notice only address Superior Court civil actions.

Which Superior Court civil actions will be dismissed?

Unless appropriate steps are taken, Superior Court civil actions are subject to be administratively dismissed if they have not been set down for trial within 5 years of their commencement or have been struck off a trial list and have not been restored within 2 years of being struck.

Accordingly, when administrative dismissals resume on May 13, actions commenced on or prior to November 12, 2018, or were struck from the trial list on or before May 13, 2022, will be subject to dismissal under Rule 48.14.

And as of May 13, 2024, actions that were commenced on or after November 13, 2018, will become subject to dismissal on a rolling basis.

These dates take 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.

If you believe your case was dismissed by the registrar in error, you may contact the court office to enquire if a mistake was made.

Please watch for notices from your local courts directing the scheduling of status hearings and motions.

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 takes one of the following steps prior to the action being dismissed:

1) files a consent timetable and draft order in writing;

2) sets the action down for trial (or restores the action to the trial list if the action has been struck from the trial list); or

3) brings a motion for a status hearing.

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.

Notably, the courts may not necessarily dismiss an action on the first day that the action becomes eligible to be dismissed. Accordingly, it may not be too late to prevent a dismissal even after an action has become eligible to be dismissed. That said, it is highly preferable that steps be taken prior to when the action becomes eligible to be dismissed as this helps to ensure that no dismissal can occur.

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

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, setting the action down for trial or restoring the action to the trial list (if the action has been struck from the trial list).

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:

1) 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);

2) the Superior Court of Justice has expressed a preference for receiving such uncontested motions in writing to avoid backlogs on motions lists. If a judge or associate judge reviews written materials and needs to hear from the parties, the judge or associate judge will indicate that direction;

3) 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;

4) 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);

5) 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); and

6) 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).

Lawyers should immediately report a potential claim to LAWPRO if:

1) their action is administratively dismissed;

2) a status hearing is needed and the opposing parties fail to promptly confirm that they will consent to or not oppose the relief sought;

3) a motion to restore the action to the trial list is needed and the opposing parties fail to promptly confirm that they will consent to or not oppose the motion; or

4) a judge or associate judge has responded to an uncontested motion for a status hearing or motion to restore an action to the trial list by raising significant concerns, requesting an oral hearing, or dismissing the motion.

While this list is meant to provide general guidance on when to report, it is possible that other reportable circumstances may arise that are not captured by this list.

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.

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. If your questions relate to a case that became eligible for administrative dismissal on or after May 13, 2024, please contact the local court location where the case is being heard. Contact information for court locations is available on the Ministry of the Attorney General’s website.

Categories: Civil Litigation