Rule 48 creates confusion for litigators in new year

LawPRO has issued an alert to litigators advising them of a potential “tsunami” in administrative dismissals of undefended actions next month, saying failing to take “fresh steps” in stagnant cases by Jan. 1, 2012 (that’s MONDAY!) could spell trouble for litigators in the in the New Year.

Under Rule 48.14 of the Rules of Civil Procedure, unless a court orders otherwise, defended actions that aren’t placed on a trial list or terminated within two years after the first defence is filed, will be dismissed for delay by a registrar of the court starting Jan. 1, unless within 90 days of an issued notice, the action is set for trial or terminated. Actions that are placed on trial lists, but were subsequently struck off will also be dismissed, unless the action is put back on the trial list or terminated within 90 days of the notice, according to the rule.

A registrar can also dismiss actions that are abandoned if more than 180 days have passed since the date the originating process was issued or if the action remains largely undefended, according to Rule 48.15.

“As we have done in the past in similar circumstances, we sent the alert in an effort to prevent claims,” said Dan Pinnington, director of practicePRO. “Fifteen or so lawyers called LawPRO further to our blast. A few were perhaps facing dismissals but the majority were seeking direction on what a fresh step on the matter is.”

According to Pinnington, however, Rule 48 isn’t clear on exactly what those fresh steps may be, leaving litigators to wonder just exactly how the rule will effect them in the new year.

“Unfortunately the rule is not clear on this,” said Pinnington. “We won’t know the impact until we see actual claims reported to us and the interpretation of the rule will impact on how those claims are resolved.”

Pinnington added the Ontario Trial Lawyers Association has since lobbied for a notice to lawyers before a dismissal occurs.

Under Rule 48.14 and Rule 48.15, litigators are not currently given notice before a dismissal.

“If you read the whole rule, it appears that the deemed dismissals only applies to undefended actions, thus the number of matters impacted could be somewhat fewer,” Pinnington adds. “Time will tell.”

In the meantime, the legal profession has sent out warnings about the rules throughout the last several months, with Pinnington noting several county law associations had sent out notices similar to LawPRO earlier in the month and the Ontario Bar Association recently hosted a weeklong discussion about the topic in its LinkedIn group.

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