The Status of Status Hearings: Civil Rules Committee amends Rule 48 beginning New Years’ Day

by Jordan Diacur

JORDAN DIACUR

JORDAN DIACUR

On September 6, 2014, Ontario Regulation 170/14 was gazetted. It contains a number of significant amendments to the Ontario Rules of Civil Procedure that all counsel practicing civil litigation in this province need to know.

Dismissal of Action for Delay—effective January 1, 2015

The current Rules 48.14 (Action Not On Trial List) and 48.15 (Action Abandoned) have been revoked. This is a major change to the Rules with respect to administrative dismissals, directly aimed at improving the efficient use of judicial resources.

In their place, a new Rule 48.14 is enacted. Actions will now be dismissed by the Registrar if not set down for trial by the later of the fifth anniversary of their commencement and January 1, 2017, or, if struck off the trial list and not restored by the later of the second anniversary of being struck off the list and January 1, 2017 [r.48.14(1)].

A key point is that such dismissal for delay will occur without any prior status notice to counsel or the parties. Instead, a dismissal order (Form 48D) will be sent to counsel after the fact. Counsel are made subject to a duty to promptly provide a copy of the dismissal order to the client. (No timeframe for service of the dismissal order by the court is specified.)

However, the action will not be dismissed if, at least 30 days prior to the applicable deadline, a consent to timetable and draft order is filed. The timetable is to be in the current form, though the date by which the timetable must require a matter to be set down for trial has been extended from one to two years.

If a consent to timetable is not forthcoming, a motion for a status hearing may still be brought by any party. Status hearings have thus not been done away with, but they will likely become more infrequent. At such a status hearing, the plaintiff—not the moving party—will now bear the onus of showing cause why the action should not be dismissed for delay. This is in the spirit of compromise: plaintiffs are given a longer timeframe to get ready for trial, but will be asked to keep within it.

If the court is not satisfied with the plaintiff’s answers at the status hearing, the matter may be dismissed. However, the court also has the ability to impose a timetable, to grant an adjournment, or to make such other order as is just.

Notably, the registrar’s order dismissing an action for delay may also be set aside on motion, as usual [r.37.14].

Certain transitional rules are mandated, which will become important very soon:

  • If a status hearing was scheduled, but not held, before January 1, 2015, it will go ahead under the old rules;
  • If a status notice went out, but no status hearing was scheduled and the matter was not dismissed before January 1, 2015, the status notice ceases to have any effect as of that date;
  • If the relevant action was not already dismissed, every r.48.15 notice of abandonment ceases to have effect as of January 1, 2015.

Other Changes—effective immediately

A few other interesting changes have been made. Rule 16 has been amended to broaden the scope of permissible service by e-mail and e-mail attachments. Also, electronic document exchanges are now specifically allowed [r.16.05(1)(c.1)]. Already, companies have announced the capability to offer such services in Ontario.

Rule 50 has been re-named, too. As it no longer deals only with pre-trials, it is now simply “Conferences”. A new r.50.13 has been added. This allows a judge to direct (on his or her own initiative, or at a party’s request) that a “case conference” be held in an action or application.

This may herald a greater judicial role in facilitating settlements, as at such a case conference a judge is empowered to identify the issues, explore methods to resolve contested issues, arrange or impose a schedule, give directions, direct that a pre-trial conference be held, and make procedural orders or order interlocutory relief.