



COURT OF APPEAL FOR ONTARIO

CITATION: H.B. Fuller Company v. Rogers (Rogers Law Office),
    2015 ONCA 173

DATE: 20150316

DOCKET: C59444

Weiler, Epstein and Brown JJ.A.

BETWEEN

H.B. Fuller Company and H.B. Fuller Construction
    Products Inc.

Plaintiffs (Appellants)

and

David Rogers, c.o.b. as Rogers Law Office and
Computer
    Packages Inc.

Defendants (
Respondent
)

Deborah Templer, for the appellants

Paula Bremner, for the respondent

Heard: February 12, 2015

On appeal from the order of Justice Frederick L. Myers of
    the Superior Court of Justice, dated September 9, 2014.

Weiler
    J.A.:

A.

overview

[1]

This is another appeal respecting the circumstances in which an action
    that has been dismissed for delay may be reinstated pursuant to rule 37.14 of
    the
Rules of Civil Procedure,
R.R.O. 1990, Reg. 194.
[1]
This case arose from the application of the former rule 48.14, which required that
    an action be set down for trial within two years after the filing of the first
    statement of defence.
[2]
Because the appellants, H.B. Fuller Company and H.B. Fuller Construction
    Products Inc.,

had not set the action
    down within the required time limit, the registrar sent a status notice to the
    solicitors acting for the appellants.
[3]
The status notice gave the appellants 90 days to set the action down for trial,
    obtain an order from a judge or master at a status hearing relieving them from this
    requirement, or otherwise conclude the action, for example, by settlement.
    Failing this, the action would be dismissed for delay.

[2]

The solicitors acting for the appellants did not receive the status
    notice. Although the proper address for service was clearly indicated on the
    statement of claim, the registrar apparently sent the notice to the wrong
    address. The subsequent order from the registrar dismissing the action for
    delay was also sent to the wrong address.

[3]

Approximately three months after becoming aware of the order of dismissal,
    the appellants brought a motion to set aside the registrars order and
    reinstate the action. The motion judge dismissed the motion on the basis that
    the appellants had failed to adequately explain the overall delay in pursuing
    their action and had also failed to discharge the onus on them of proving a lack
    of prejudice to the respondent, Computer Packages Inc. (CPI). The appellants
    appeal this decision.

[4]

For the reasons that follow, I would allow the appeal. The motion judge
    erred in two respects. First, he did not give sufficient weight to the
    non-receipt of the registrars status notice and the opportunities the
    appellants lost as a result. Second, he erred in the manner in which he assessed
    prejudice to the respondent. Having regard to the errors of the motion judge, I
    would set aside the dismissal order pertaining to CPI and reinstate the action.

B.

chronology of the litigation

[5]

The appellants sued CPI, a supplier of patent and trademark management
    systems to companies and law firms, for damages in negligence and breach of
    contract. In their statement of claim, the appellants alleged CPI failed to
    monitor the dates when patent maintenance fees for certain of the appellants' patents
    became payable. They further alleged CPI negligently relied on and failed to
    verify the incorrect representations of Rogers, a Toronto-based patent lawyer against
    whom the appellants also brought a claim for damages in negligence. As against
    Rogers, the appellants alleged that he failed to reinstate certain patents and
    failed to pay the applicable maintenance fees, with the result that the
    Canadian Intellectual Property Office considered three patents abandoned.

[6]

Although the appellants state they discovered the existence of their
    claim in October 2009, they did not commence their action until October 2011,
    one day before the two year limitation period expired. Rogers requested a
    number of extensions of time to file a statement of defence, which he finally did
    on December 21, 2012, more than 14 months after service of the statement of
    claim. The appellants state they initiated discussions regarding discovery, including
    proposed discovery dates for Rogers, in April 2013. On May 17, 2013, counsel
    for Rogers wrote to counsel for CPI and the appellants advising that the
    parties were not yet in a position to agree to a discovery plan as CPI had not
    yet filed its statement of defence.

[7]

CPI states that, pursuant to August 2012 discussions and a January 8,
    2013, email, the appellants did not specifically require CPI to file a defence.
    Instead the appellants focussed their attention on their claim against Rogers.

[8]

Rogers died on July 17, 2013. On July 22, 2013, CPI served and filed its
    statement of defence.

[9]

On November 8, 2013, the registrar issued a status notice. According to
    the affidavit filed by the appellants solicitors, the notice was inexplicably
    mailed to a post office box that had been vacated by the law firm in 2004 and
    not to the firms address for service shown on the statement of claim.

[10]

On
    February 24, 2014, the registrar dismissed the action for delay, as it had not
    been set down for trial or otherwise concluded within the time prescribed by
    rule 48.14. The appellants counsel did not receive the order.

[11]

The
    appellants solicitors affidavit further states that it was only when he was
    attempting to settle the action with Rogers counsel on March 3, 2014, that he
    was advised that the action had been dismissed for administrative delay.

[12]

Instead
    of contacting CPI immediately and seeking its consent to set aside the order of
    the registrar, counsel for the appellants took the position that the registrar
    had no jurisdiction to dismiss the action for delay because the status notice
    had not been served in accordance with the rules. This was an error of law. The
    failure to properly serve a status notice is an irregularity and does not oust
    the registrars jurisdiction to dismiss the action:
Finlay v. Van Paasen
,

2010 ONCA 204, 101 O.R. (3d) 390, at para. 15. This error of law on the
    part of the appellants solicitors does not excuse their delay.

[13]

Meanwhile,
    the appellants solicitors continued settlement discussions with Rogers
    insurer, LawPro.

[14]

On
    May 13, 2014, CPI notified the appellants by email that it would not be seeking
    costs for the dismissed action. On May 22, 2014, the appellants emailed CPI,
    indicating that they would be bringing a motion to set aside the registrars
    order and seeking consent to have the action reinstated. This consent was
    refused. On May 29, 2014, the appellants set out their position that the
    registrar lacked jurisdiction and again sought to obtain CPIs consent to
    reinstate the action. Again CPI refused.

[15]

On
    June 9, 2014, about three months after they became aware that the action had
    been dismissed for delay, the appellants brought their motion requesting that
    the registrars order be set aside.

C.

The motion judges reasons

[16]

Citing
Finlay,
the motion judge rejected the appellants argument that the
    registrar lacked jurisdiction to dismiss the action. He observed that the fact
    the notice of status hearing went astray was a factor that weighed strongly in favour
    of reinstating the case, and that
Finlay
was on all fours with this
    case.

[17]

The
    motion judge then adverted to the contextual balancing of four factors required
    when determining whether an action should be reinstated. He observed that the
    action moved fairly quickly, if grudgingly. He held, however, that the
    appellants did not meet their burden to explain the delay. He found the delay
    was attributable to the appellants indulgences to the respondent and their
    desire to settle the action with Rogers. Even after finding out their action
    was dismissed, the plaintiffs approach was to favour its settlement approach
    with Rogers/LawPro ahead of moving to reinstate with alacrity. In addition, he
    held that the appellants had not met their burden of showing that Rogers death
    in 2013 did not cause any prejudice to CPI. He added that the appellants had
    not shown that the case was a documents case or that Rogers evidence was not
    needed.

[18]

The
    crux of the motion judges reasoning is as follows:

The trial never could have been held in the time between the
    commencement of the action in October 2011 until Mr. Rogers death in July
    2013. But discoveries could have been held or Mr. Rogers evidence otherwise
    preserved.  The plaintiff bears the outcome of its indulgences and settlement efforts. 
    The action did not have to go into abeyance to discuss settlement. See
Faris
at paragraph 50.

The plaintiff brought this action in the wrong court, with no
    factum or book of authorities. It treats this action as a sideshow focusing
    instead on settlement with Rogers.  Even there, it has yet to obtain an Order
    to Continue over a year after Mr. Roger[s] death. The plaintiff cannot meet
    its burden to explain its delay and prove no prejudice either strictly or
    contextually.

D.

STANDARD OF REVIEW

[19]

The
    decision of a motion judge made pursuant to rule 37.14 is discretionary and is
    entitled to deference on appeal:
Finlay
, at para. 6. The decision may
    be set aside if the motion judge proceeded on an erroneous legal principle or
    made a palpable and overriding error with respect to the facts:
1196158
    Ontario Inc. v. 6274013 Canada Ltd.
, 2012 ONCA 544, 353 D.L.R. (4th) 129, at
    para. 16. Reversing a lower courts discretionary decision is also appropriate
    where the lower court gives no or insufficient weight to relevant
    considerations:
Penner v. Niagara Regional Police Services Board
, 2013
    SCC 19, [2013] 2 S.C.R. 125, at para. 27.

E.

analysis

[20]

When
    hearing a motion to set aside a registrars order dismissing an action for
    delay, a judge must consider and weigh the following four well-known factors: the
    length of the litigation delay and whether the plaintiff has provided an
    adequate explanation for it; whether the failure to meet the mandated time
    limits was due to inadvertence; whether the motion to set aside the dismissal
    order was brought promptly; and whether the delay has prejudiced the defendant:
Habib v. Mucaj
, 2012 ONCA 880, 31 C.P.C. (7th) 1, at para. 5;
Hamilton
    (City) v. Svedas Koyanagi Architects Inc.
, 2010 ONCA 887, 328 D.L.R. (4th)
    540, at para. 22.


[21]

Requiring
    a party moving to set aside the order dismissing its action for delay to
    satisfy each of the four factors is too rigid an approach. That approach,
    derived from
Reid v. Dow Corning Corp.
(2001), 11 C.P.C. (5th) 80 (Ont.
    S.C.), at para. 41, revd on other grounds (2002), 48 C.P.C. (5th) 93 (Ont.
    Div. Ct.), was overruled in
Scaini v. Prochnicki
, 2007 ONCA 63, 85
    O.R. (3d) 179. See
Marché DAlimentation Denis Theriault Ltee v. Giant
    Tiger Stores Limited
, 2007 ONCA 695, 286 D.L.R. (4th) 487
,
at
    para. 20. Instead, the judge must adopt an overall contextual approach and, as
    well, take factors unique to the case into consideration. The factors are not
    an end in themselves. Rule 37.14(2) requires that a judge arrive at a just
    result in the particular circumstances of the case:
Scaini
,

at
    paras. 23-24.

[22]

Some
    of the later authorities from this court have applied a two-part test that is
    conjunctive, requiring a plaintiff both to provide an acceptable explanation
    for the delay and to show that the defendant would suffer no non-compensable
    prejudice if the action were allowed to proceed: see e.g.
Kara v. Arnold
,
    2014 ONCA 871,

[2014] O.J. No. 5818, at para. 8. This test emerged in
    the context of the similar consideration of whether an action should be
    dismissed for delay following a status hearing under the old rule 48.14(13).

[23]

As
    Blair J.A. stated on behalf of the court in
Kara
,

at para.13:

[L]ittle is to be gained by debating whether there is a bright
    line between the contextual approach [enunciated in
Scaini
]

and
    the approach enunciated in later authorities such as
Faris
and
1196158
    Ontario Inc. v. 6274013 Canada Ltd.


Neither the four-factor approach nor the two-part test
    provides an exhaustive list of considerations. Regardless of which is followed,
    all of the circumstances of the case must be considered in order to arrive at a
    just result: see e.g.
Hamilton (City)
, at paras. 22-23;
Marché
,
    at para. 20;
Finlay
, at paras. 27-30;
Kara
, at paras. 13-15. Furthermore,
    it is not only the plaintiffs conduct that must be considered. While the
    plaintiff bears primary responsibility for the conduct of the action, the
    defendants conduct in the litigation is a relevant circumstance: see
Aguas
    v. Rivard Estate
, 2011 ONCA 494, 107 O.R. (3d) 142, at paras. 18-19, 21.

[24]

In
    his reasons, the motion judge adverted to both the four-factor contextual
    approach and
Faris v. Eftimonski,
2013 ONCA 360, 363 D.L.R. (4th) 111,
    which employs the two-part test
.
The parties to this appeal agree that
    the issue is whether he applied the relevant factors correctly.

[25]

The
    factors that guide the courts choice between ending the plaintiffs action
    before trial and forcing the opposite party to defend the case despite the
    delay require a judge to resolve the tension between two underlying policies.
    The first is that civil actions should be decided on their merits. The second
    is that civil actions should be resolved in a timely and efficient manner in
    order to maintain public confidence in the administration of justice:
Kara,
at para. 9;
Hamilton (City)
,

at paras. 20-21;
Marché
,
    at para. 25.

[26]

When
    reviewing a registrars dismissal for delay under the former rule 48.14, the
    weight of authority from this court has leaned towards the first policy
    consideration. As Laskin J.A. stated in
Hamilton (City),
at para. 20,
    quoting with approval the motion judges comment, [T]he courts bias is in
    favour of deciding matters on their merits rather than terminating rights on
    procedural grounds.

While failure to enforce the rules may undermine
    public confidence in the capacity of the justice system to process disputes
    fairly and efficiently, as Sharpe J.A. observed in
119
, at para. 19, nonetheless:

[P]rocedural rules are the servants of justice not its master 
    We should strive to avoid a purely formalistic and mechanical application of
    time lines that would penalize parties for technical non-compliance and
    frustrate the fundamental goal of resolving disputes on their merits. [T]he Rules
    and procedural orders are construed in a way that advances the interests of
    justice, and ordinarily permits the parties to get to the real merits of their
    dispute. [
119
, at para. 19. Citations omitted.]

[27]

The
    courts preference for deciding matters on their merits is all the more
    pronounced where delay results from an error committed by counsel. As the court
    stated in
Habib,
at para. 7, [O]n a motion to set aside a dismissal
    order, the court should be concerned primarily with the rights of the litigants,
    not with the conduct of their counsel. In
Marché
, Sharpe J.A. stated,
    at para. 28, The law will not ordinarily allow an innocent client to suffer
    the irrevocable loss of the right to proceed by reason of the inadvertence of
    his or her solicitor (citations omitted).

[28]

In
    determining whether to reinstate an action that has been dismissed for delay,
    keeping in mind the above observations, the court must consider the rights of
    all the litigants. This necessarily requires consideration not only of the plaintiffs
    right to have its action decided on its merits, but also consideration of whether
    the defendant has suffered non-compensable prejudice as a result of the delay,
    whether or not a fair trial is still possible, and even if it is, whether it is
    just that the principle of finality and the defendants reliance on the
    security of its position should nonetheless prevail. See e.g.
119
, and
Wellwood v. Ontario Provincial Police
, 2010 ONCA 386, 319 D.L.R. (4th) 412.

[29]

With
    this jurisprudence in mind, I turn now to its application in this case.

1. Explanation for delay

[30]

The
    appellants submit that the motion judge erred in the manner in which he
    assessed the explanation for delay in moving the action forward. In particular,
    they say he placed insufficient weight on the registrars failure to serve the
    status notice on the appellants. The appellants rely on
Finlay
, at
    para. 16, in which Laskin J.A. held that the registrars failure to serve a
    status notice on the plaintiffs counsel was an important consideration in
    deciding whether to set aside the dismissal order and that, so long as
    plaintiffs counsel had moved promptly after learning of the dismissal order,
    the interests of justice would demand that the order be set aside.

[31]

Although
    the motion judge referred to
Finlay
and noted it was on all fours
    with this case, his view was that the appellants did not move promptly enough
    to set aside the order dismissing the action. He placed little weight on the
    fact that the status notice had not been properly served, commenting that [t]he
    fact that the Status Notice went astray, at best, leads to the outcome that the
    plaintiff should have faced a Status Hearing at which it would have faced the
    burden of the
Faris
Test.

[32]

The
    motion judges analysis ignores the fact the appellants did move to set aside
    the order reasonably quickly  just over three months after the action was
    dismissed for delay. It also ignores the fact that their delay in moving to set
    aside the order was due, in part, to the appellants solicitors mistaken view
    that the registrar lacked jurisdiction to dismiss the action. While this
    erroneous legal interpretation does not excuse the delay, that the delay
    proceeded from the inadvertence of the appellants solicitors is a factor that
    must be considered.

[33]

More
    importantly, the motion judge also failed to consider that, because the status
    notice went to the wrong address, the appellants lost the opportunity to
    prevent their action being dismissed for delay. In the particular circumstances
    of this case, this was a key factor that had to be considered in assessing
    whether it was just to set aside the order of dismissal.

[34]

Had
    the appellants received the notice to dismiss for delay, they might have been spurred
    to settle the case within the 90-day period afterwards, thereby terminating the
    action as contemplated by rule 48.14(4)(b).

[35]

Alternatively,
    the appellants could have requested that the registrar arrange a status hearing
    to show cause why the action should not be dismissed. As explained in Todd
    Archibald, Gordon Killeen & James C. Morton,
Ontario Superior Court
    Practice
, 2015 ed. (Markham, Ont.: LexisNexis, 2014), at p. 1422:

[T]he 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 unusual and clear cases, where
    there is actual prejudice to D, and a history of flagrant breaches by P of
    various court orders, that the drastic order of dismissing an action at the
    status hearing may be appropriate.  Such an order would be unusual.
[4]


[36]

As
    this excerpt makes clear, a status hearing would have provided the appellants
    with a real opportunity to get the action back on track and avoid having it
    dismissed for delay. Because the motion judge did not consider the
    opportunities the appellants lost as a result of not receiving the status
    notice, he gave insufficient weight to this fact in considering whether it was
    just in the circumstances to uphold the order of dismissal.

2. Prejudice

[37]

I
    turn now to the manner in which the motion judge assessed prejudice. Recently,
    in
MDM Plastics Ltd. v. Vincor International Inc.
, 2015 ONCA 28,

[2015]
    O.J. No. 265, at para. 25, van Rensburg J.A. explained how prejudice must be
    considered:

The prejudice that the motion judge or master must consider is
    to the defendants ability to defend the action that would [arise] from steps
    taken following dismissal, or which would result from restoration of the action
    following the registrars dismissal. [Citations omitted.]

[38]

A
    presumption of prejudice can arise from the passage of time, such as the expiry
    of a limitation period or, as here, the death of a witness. However, the plaintiff
    will not necessarily fail to rebut this presumption simply because he or she
    does not adduce affirmative evidence:

Rather, in evaluating the strength of the presumption of
    prejudice the master or motion judge, must consider all of the circumstances, including
    the defendants conduct in the litigation. [
MDM
,

at para. 32.
    citations omitted.]

[39]

In
    considering whether the appellants had rebutted the presumption of prejudice
    arising from Rogers death, the motion judge failed to consider evidence
    respecting the respondents conduct. Instead, he simply applied the holding in
Faris
without considering the significant factual differences between the
    defendants conduct in that case and the situation here. In so doing, the
    motion judge committed an error that taints his analysis of prejudice.

[40]

In
Faris
, as in this case, a party died during a period of indulgence
    granted by the plaintiff, namely, an extension of time given to one of the respondents
    to file a statement of defence. However, the chronology of the parties actions
    in
Faris
is significant. In that case, after the partys death, the respondent
    filed a notice of intent to defend and also requested that the action against it
    be dismissed without costs. The appellants lawyer did not respond to this
    request, so the respondent sent two further letters, again asking that it be
    let out of the action. The appellants lawyer finally responded, almost a year
    after the first request, at which time he acknowledged receipt of the several
    letters sent throughout the previous year and indicated that he would get
    instructions before the end of the month. He did not do so, and instead only provided
    an answer to the respondents request after the status notice was issued a
    further year later. In these circumstances the court held, at para. 50, that it
    was incumbent on the appellant to conduct his action in a proactive manner and that
    it was not unfair to ascribe the prejudice caused by a partys death to the
    appellant.

[41]

In
    this case, upon Rogers death, CPI filed its statement of defence. Then it did nothing
    from July 2013 to May 2014. It did not seek to have the action against it
    dismissed pursuant to Rule 24. During all this time, neither CPI nor LawPro
    raised the failure of the appellants to obtain an order for continuance. CPI
    was content to let the appellants focus on Rogers/LawPro, as any settlement
    they might reach with him potentially reduced its liability. Assuming serious
    negotiations with LawPro were taking place, forcing CPI to incur the cost of
    filing a statement of defence earlier and pushing ahead with discovery would
    not have been in keeping with one of the requirements of rule 1.04, namely, to
    secure the least expensive determination of a civil proceeding. In my view, a just
    resolution should take into consideration not only the plaintiffs obligation
    to proceed expeditiously, but also the cost to the parties of doing so in the
    circumstances.

[42]

Although
    it is incumbent upon a plaintiff to conduct its action in a proactive manner,
    it is unfair in the circumstances of this case to ignore CPIs passivity. As
    Rosenberg J.A. stated for a majority of this court in
Aguas
, at para.
    19, while the appellant, as plaintiff, bore responsibility for moving the
    action along  respondents' counsel's lack of display of any sense of urgency
    undercuts the claim of actual prejudice. In the circumstances, the motion
    judges reliance on
Faris
without considering the significant factual
    differences between that case and this, and his failure to consider the actions
    of the respondent, led him to err in his assessment of prejudice.

[43]

A
    second error on the part of the motion judge with respect to his assessment of
    prejudice is the fact that he did not advert to a significant piece of
    evidence, namely the appellants solicitors affidavit that he was unaware of
    any prejudice to the respondent in setting aside the order. In concluding the
    appellants had not met their burden of rebutting the presumption of prejudice, it
    was open to the motion judge to reject the affidavit evidence as being a bald and
    unsupported statement: see
Faklan
(c.o.b.
Faklan Health Services)
    v. Niewiadomski,
2014 ONCA 697, [2014] O.J. No. 4792, at paras. 2-3.
    However, he was not entitled to simply ignore that evidence: see e.g.
ODowda
    v. Halpenny
, 2015 ONCA 22, [2015] O.J. No. 214, at para. 10.

[44]

Finally,
    the motion judge did not link the question of prejudice to whether a fair trial
    was still possible and made no finding in that regard.

[45]

Having
    regard to these errors, it becomes  necessary  to reweigh the evidence
    respecting prejudice. CPI does not plead specific non-compensable prejudice or
    the inability to defend the action as a result of Rogers death. The prejudice
    from Rogers death was not increased by the failure of the appellants to set
    the action down within the time limits mandated by the rules. Following Rogers
    death, settlement negotiations continued. One obvious reason for the protracted
    nature of the negotiations is that the calculation of damages would depend on
    whether the appellants were successful in having their patents reinstated. According
    to CPI, the appellants were successful in having one of the patents reinstated
    and were in the process of resolution with respect to another. Nothing occurred
    between the issuance of the status notice and the motion to set aside the
    dismissal order that increased the prejudice to CPI. Nor was the delay in
    moving to set aside the registrars order once it came to the appellants
    attention so great that the principle of finality and CPIs reliance on the
    security of its position must prevail. A fair trial is still possible in these
    circumstances.

3. Conclusion

[46]

While
    the discretionary decision of a lower court is entitled to deference, the
    errors I have identified rise to a level that warrants appellate intervention. Considering
    all the circumstances of this case, I would hold that the appellants have
    explained the delay in their conduct of the litigation and that the delay in
    moving to set aside the dismissal order is not so great as to yield to CPIs
    reliance on the security of its position. I also conclude that the appellants
    have rebutted the presumption of non-compensable prejudice and it is still
    possible to have a fair trial.

F.

disposition and costs

[47]

Accordingly,
    I would set aside the motion judges order dismissing the action and in its
    place I would order that the action be reinstated.

[48]

I
    would order that costs of the appeal be to the appellants and would fix those
    costs at $15,000 inclusive of the costs of the motion below, disbursements and
    all applicable taxes.

Released: (GE) March 16,
    2015

K.M.
    Weiler J.A.

I
    agree Gloria Epstein J.A.

I
    agree David Brown J.A.


APPENDIX A

Rules of Civil Procedure
, R.R.O. 1990, Reg. 194

Rule 1.04

INTERPRETATION

General
    Principle

1.04  (1)  These rules shall be liberally construed to secure the just,
    most expeditious and least expensive determination of every civil proceeding on
    its merits. R.R.O. 1990, Reg. 194, r. 1.04 (1).

Rule 37.14

SETTING ASIDE,
    VARYING OR AMENDING ORDERS

Motion to Set
    Aside or Vary

37.14  (1)  A party or other person who,

(a) is affected by an order obtained on motion without
    notice;

(b) fails to appear on a motion through accident, mistake
    or insufficient notice; or

(c) is affected by an order of a registrar,

may move to set aside or vary the order, by a
    notice of motion that is served forthwith after the order comes to the persons
    attention and names the first available hearing date that is at least three
    days after service of the notice of motion. R.R.O. 1990, Reg. 194, r. 37.14
    (1); O. Reg. 132/04, s. 9.

(2)  On a motion under subrule (1), the court
    may set aside or vary the order on such terms as are just. R.R.O. 1990, Reg.
    194, r. 37.14 (2).

...

Rule 48.14 (Revoked by
    O. Reg. 170/14, ss. 10, 26(1))

ACTION
    NOT ON TRIAL LIST

Definition

48.14  (0.1)  In this rule,

defence means,

(a) a
    statement of defence,

(b) a notice
    of intent to defend, and

(c) a notice
    of motion in response to an action, other than a motion challenging the courts
    jurisdiction. O. Reg. 394/09, s. 20 (1).

Status Notice

(1)  Unless the court orders otherwise, if an action in which a defence
    has been filed has not been placed on a trial list or terminated by any means
    within two years after the first defence is filed, the registrar shall serve on
    the parties a status notice in Form 48C.1 that the action will be dismissed for
    delay unless, within 90 days after service of the notice, the action is set
    down for trial or terminated, or documents are filed in accordance with subrule
    (10). O. Reg. 438/08, s. 46; O. Reg. 394/09, s. 20 (2, 3); O. Reg. 186/10, s.
    3.

(2)  Unless the court orders otherwise, if an action that was placed on
    a trial list and was subsequently struck off is not restored to a trial list
    within 180 days after being struck off, the registrar shall serve on the
    parties a status notice in Form 48C.2 that the action will be dismissed for
    delay unless, within 90 days after service of the notice, the action is
    restored to a trial list or terminated, or documents are filed in accordance
    with subrule (10). O. Reg. 438/08, s. 46.

Notice to Client

(3)  A lawyer who receives a status notice shall forthwith give a copy
    of the notice to his or her client. O. Reg. 438/08, s. 46.

Dismissal by
    Registrar

(4)  The registrar shall dismiss the action for delay, with costs, 90
    days after service of the status notice, unless,

(a) the action
    has been set down for trial or restored to a trial list, as the case may be;

(b) the action
    has been terminated by any means;

(c) documents
    have been filed in accordance with subrule (10); or

(d) the judge
    or case management master presiding at a status hearing has ordered otherwise.
    O. Reg. 438/08, s. 46.

(5)  If an action is not set down for trial, restored to a trial list
    or terminated by any means within the time specified in an order made at a
    status hearing, the registrar shall dismiss the action for delay, with costs.
    O. Reg. 438/08, s. 46.

Dismissal Order
    to be Served

(6)  The registrar shall serve an order made under subrule (4) or (5)
    (Form 48D) on the parties. O. Reg. 438/08, s. 46.

Dismissal Order
    to Client

(7)  A lawyer who is served with an order dismissing the action for
    delay shall forthwith give a copy of the order to his or her client. O. Reg.
    438/08, s. 46.

Status Hearing

(8)  Where a status notice has been served, any party may request that
    the registrar arrange a status hearing, in which case the registrar shall mail
    to the parties a notice of the status hearing, and the hearing shall be held
    before a judge or case management master. O. Reg. 438/08, s. 46.

Notice to Client

(9)  A lawyer who receives a notice of status hearing shall forthwith
    give a copy of the notice to his or her client. O. Reg. 438/08, s. 46.

When Hearing in
    Writing

(10)  Unless the presiding judge or case management master orders
    otherwise, the status hearing shall be held in writing and without the
    attendance of the parties if a party files the following documents at least
    seven days before the date of the status hearing:

1. A
    timetable, signed by all the parties, containing the information set out in
    subrule (11).

2. A draft
    order establishing the timetable. O. Reg. 438/08, s. 46.

Timetable

(11)  The timetable shall,

(a) identify
    the steps to be completed before the action may be set down for trial or
    restored to a trial list;

(b) show the
    date or dates by which the steps will be completed; and

(c) show a
    date, which shall be no more than 12 months after the date of the status
    hearing, before which the action shall be set down for trial or restored to a
    trial list. O. Reg. 438/08, s. 46.

Status Hearing
    in Person

(12)  In the case of a status hearing that is not to be held in writing,
    the lawyers of record shall attend, and the parties may attend, the status
    hearing. O. Reg. 438/08, s. 46.

Disposition at
    Status Hearing

(13)  At the status hearing, the plaintiff shall show cause why the
    action should not be dismissed for delay and,

(a) if the
    presiding judge or case management master is satisfied that the action should
    proceed, the judge or case management master may,

(i) set time
    periods for the completion of the remaining steps necessary to have the action
    placed on or restored to a trial list and order that it be placed on or
    restored to a trial list within a specified time,

(ii) adjourn
    the status hearing to a specified date on such terms as are just, or

(iii) if the
    action is an action to which Rule 77 may apply under rule 77.02, assign the
    action for case management under that Rule, subject to the direction of the
    regional senior judge,

(iv) make such
    other order as is just; or

(b) if the
    presiding judge or case management master is not satisfied that the action
    should proceed, the judge or case management master may dismiss the action for
    delay. O. Reg. 438/08, s. 46.

Plaintiff under
    Disability

(14)  Unless the court orders otherwise, where the plaintiff is under a
    disability, an action may be dismissed for delay under this rule only if the
    defendant gives notice to the Childrens Lawyer or, if the Public Guardian and
    Trustee is litigation guardian of the plaintiff, to the Public Guardian and
    Trustee. O. Reg. 438/08, s. 46.

Effect
    of Dismissal

(15)  Rules 24.03 to 24.05 (effect of dismissal for delay) apply to an
    action dismissed for delay under subrule (4), (5) or (13). O. Reg. 438/08, s.
    46; O. Reg. 394/09, s. 20 (4).

Setting Aside
    Dismissal

(16)  An order under this rule dismissing an action may be set aside
    under rule 37.14. O. Reg. 438/08, s. 46.

Rule 48.14 (Current)

DISMISSAL OF
    ACTION FOR DELAY

48.14  (1)  Unless the court orders otherwise, the registrar shall
    dismiss an action for delay in either of the following circumstances, subject
    to subrules (4) to (8):

1. The action
    has not been set down for trial or terminated by any means by the later of the
    fifth anniversary of the commencement of the action and January 1, 2017.

2. The action
    was struck off a trial list and has not been restored to a trial list or
    otherwise terminated by any means by the later of the second anniversary of
    being struck off and January 1, 2017. O. Reg. 170/14, s. 10.

Order to be
    Served

(2)  The registrar shall serve an order made under subrule (1) (Form
    48D) on the parties. O. Reg. 170/14, s. 10.

Order to Client

(3)  A lawyer who is served with an order made under subrule (1) shall
    promptly give a copy of the order to his or her client. O. Reg. 170/14, s. 10.

Timetable

(4)  Subrule (1) does not apply if, at least 30 days before the expiry
    of the applicable period referred to in that subrule, a party files the
    following documents:

1. A
    timetable, signed by all the parties, that,

i. identifies
    the steps to be completed before the action may be set down for trial or
    restored to a trial list, as the case may be,

ii. shows the
    date or dates by which the steps will be completed, and

iii. shows a
    date, which shall be no more than two years after the day the applicable period
    referred to in subrule (1) expires, before which the action shall be set down
    for trial or restored to a trial list.

2. A draft
    order establishing the timetable. O. Reg. 170/14, s. 10.

Status Hearing

(5)  If the parties do not consent to a timetable under subrule (4),
    any party may, before the expiry of the applicable period referred to in
    subrule (1), bring a motion for a status hearing. O. Reg. 170/14, s. 10.

(6)  For the purposes of subrule (5), the hearing of the motion shall
    be convened as a status hearing. O. Reg. 170/14, s. 10.

(7)  At a status hearing, the plaintiff shall show cause why the action
    should not be dismissed for delay, and the court may,

(a) dismiss
    the action for delay; or

(b) if the
    court is satisfied that the action should proceed,

(i) set
    deadlines for the completion of the remaining steps necessary to have the
    action set down for trial or restored to a trial list, as the case may be, and
    order that it be set down for trial or restored to a trial list within a
    specified time,

(ii) adjourn
    the status hearing on such terms as are just,

(iii) if Rule
    77 may apply to the action, assign the action for case management under that
    Rule, subject to the direction of the regional senior judge, or

(iv) make such
    other order as is just. O. Reg. 170/14, s. 10.

Party Under
    Disability

(8)  Subrule (1) does not apply if, at the time the registrar would
    otherwise be required under that subrule to dismiss an action for delay, the
    plaintiff is under a disability. O. Reg. 170/14, s. 10.

Effect
    of Dismissal

(9)  Rules 24.03 to 24.05 (effect of dismissal for delay) apply to an
    action dismissed under subrule (1). O. Reg. 170/14, s. 10.

Setting Aside

(10)  The dismissal of an action under subrule (1) may be set aside
    under rule 37.14. O. Reg. 170/14, s. 10.

Transition

(11)  Subject to subrule (12), every status notice served under this
    rule, as it read immediately before January 1, 2015, ceases to have effect on
    that date, if the action was not dismissed before that date. O. Reg. 170/14, s.
    10.

(12)  If a status hearing in relation to a status notice was scheduled
    but not held before January 1, 2015, this rule, as it read immediately before
    that date, continues to apply to the matter. O. Reg. 170/14, s. 10.

(13)  Every notice that an action will be dismissed as abandoned that
    was given by the registrar under rule 48.15, as it read immediately before
    January 1, 2015, ceases to have effect on that date, if the action was not
    dismissed before that date. O. Reg. 170/14, s. 10.





[1]
The Rules cited in this judgment are set out in Appendix A, following these
    reasons.



[2]
On January 1, 2015, O. Reg 170/14, s. 10, came into force and substituted a new
    rule 48.14, notably changing the timeline for a dismissal for delay to five
    years from the commencement of the action.



[3]
The status notice states in part, According to the records in the court
    office: (a) more than two years have passed since a defence in this action was
    filed. The first defence in this action was filed on December 21, 2012, and
    the status notice was issued on November 8, 2013. It therefore appears that the
    status notice was sent before the two year period after filing the first
    defence had expired and was therefore premature. No party has raised this and
    the motion judge did not consider it. There may be other facts of which the
    court is unaware and therefore I will decide the case as if the status notice
    had been properly issued.



[4]
The authors acknowledge, as well, that where the plaintiff is not able to
    provide a satisfactory explanation for the delay, it is still open to the judge
    to dismiss the action even in the absence of proof of actual prejudice to the
    defendant.


