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 registrar’s 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 registrar’s 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 firm’s 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’ solicitor’s 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 registrar’s 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 registrar’s 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 CPI’s 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 registrar’s order be set aside.

C. The motion judge’s 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 plaintiff’s 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 judge’s 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 court’s 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 registrar’s 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, rev’d 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 D’Alimentation 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 plaintiff’s conduct that must be considered. While the plaintiff bears primary responsibility for the conduct of the action, the defendant’s 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 court’s choice between ending the plaintiff’s 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 registrar’s 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 judge’s comment, “[T]he court’s 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 court’s 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 plaintiff’s 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 defendant’s 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 registrar’s 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 registrar’s failure to serve a status notice on the plaintiff’s counsel was an important consideration in deciding whether to set aside the dismissal order and that, so long as plaintiff’s 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 judge’s 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 defendant’s ability to defend the action that would [arise] from steps taken following dismissal, or which would result from restoration of the action following the registrar’s 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 defendant’s 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 respondent’s conduct. Instead, he simply applied the holding in Faris without considering the significant factual differences between the defendant’s 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 party’s death, the respondent filed a notice of intent to defend and also requested that the action against it be dismissed without costs. The appellant’s 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 appellant’s 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 respondent’s 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 party’s 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 plaintiff’s 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 CPI’s 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 judge’s 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’ solicitor’s 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. O’Dowda 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 registrar’s order once it came to the appellants’ attention so great that the principle of finality and CPI’s 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 CPI’s 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 judge’s 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 person’s 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 court’s 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 Children’s 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.