SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: CV-09-767
Date: 20120209
RE: Pinevalley Trim & Doors Ltd.
Plaintiff
v.
Tibollo & Associates Professional Corporation et al.
Defendant
BEFORE: Ricchetti, J.
COUNSEL:
J. Tighe, for the Plaintiff
C. Wiebe, for the Defendants
ENDORSEMENT
[1] This matter came before the court on a status hearing on February 7, 2012.
[2] The Defendants took the position that by virtue of Rule 48.15(6) of the Rules of Civil Procedure, the action had been dismissed on January 1, 2012.
[3] The Plaintiff submitted that Rule 48.15(6) did not apply to this action. The Plaintiff submitted Rule 48.14 applied.
[4] Counsel disagreed as to whether a "step" had been taken in the action between January 1, 2010 and December 31, 2011. Counsel requested the court to deal with which Rule applied to this action as a matter of law rather than embark upon what could be an expensive motion to deal with:
i. whether a "step" had been taken during this period;
ii. if no "step" had been taken during this period whether the court should "order otherwise"; or
iii. a motion to set aside the dismissal under Rule 37.14 of the Rules of Civil Procedure .
[5] The court agreed to do so.
[6] The issue squarely before this court is whether Rule 48.15 applies to this action which has been defended.
History of Rule 48.14 and 48.15
[7] Let me deal with the history of Rule 48.14 and 48.15. .
Status Hearing for Defended Actions
[8] The genesis of the Rule appears to be an adoption of the Nova Scotia Rule 28 of 1977. That Rule was described as follows by the Chief Justice Gordon Cowan of the Trial Division of the Supreme Court of Nova Scotia as follows;
In adopting this rule, the court accepted responsibility for seeing that proceedings are brought on for hearing. Responsibility is accepted with respect to proceedings in which a defence is filed.
[9] The Rule providing for Status Hearings has been in force for some time. Initially, the Rule provided that a Status Hearing would occur after one year had elapsed from the filing of the Defence unless the action had been set down. After considerable debate and concern the one year period was too short, in 1987, the Rule was amended to provide that a Status Hearing would occur after two years from the filing of a defence - an extension of a year.
[10] The result was that Status Hearings notices were served on the parties and a court date was scheduled. In most cases, either the parties agreed to move the action along or no one appeared for the parties. Where no one appeared, the action was dismissed. The mandatory Status Hearings put considerable pressure on scarce judicial resources and became an unnecessary expense to many of the parties who were prepared to move the action along.
[11] As a result, in 1991 the Rule was further amended to provide that a Status Notice would be delivered by the Registrar to the parties and failing any action by the parties, the action would be dismissed for delay. In order to avoid a dismissal of the action, a party could either set the matter down or seek a Status Hearing. The effect was to significantly reduce the number of Status Hearings.
[12] The Status Hearing Rule for defended action was amended effective January 1, 2010. However, the changes did not fundamentally change one aspect significant to this motion - the Status Hearing Rule continued to apply to actions where a defence was filed.
[13] There was no need for a transition provision as this Rule had been in place for many years and appeared to work well for defended actions.
Abandoned Actions
[14] There was no comparable provision which dealt with actions which had not been defended. In other words, where an action had been commenced but no defence had been filed, the Rules of Civil Procedure did not provide a mechanism where undefended actions could be brought forward administratively for disposition. The result was many court files remained in the system without any action being taken and no mechanism to clear them from the system.
[15] Ontario Regulation 438/08 changed the Rules to specifically provide for administratively dealing with these undefended actions where nothing had occurred on the file for a period of time:
ONTARIO REGULATION 438/08
made under the
COURTS OF JUSTICE ACT
Made: December 3, 2008
Approved: December 10, 2008
Filed: December 10, 2008
Published on e-Laws: December 12, 2008
Printed in The Ontario Gazette : December 27, 2008
Amending Reg. 194 of R.R.O. 1990
(Rules of Civil Procedure)
ACTION ABANDONED
Dismissal
48.15 (1) The registrar shall make an order dismissing an action as abandoned if the following conditions are satisfied,
unless the court orders otherwise:
More than 180 days have passed since the date the originating process was issued.
No statement of defence has been filed.
The action has not been disposed of by final order or judgment.
The action has not been set down for trial.
The registrar has given 45 days notice in Form 48E that the action will be dismissed as abandoned.
Service on Parties
(2) The registrar shall serve a copy of the order made under subrule (1) (Form 48F) on the parties.
Effect on Subsequent Action
(3) The dismissal of an action as abandoned has the same effect as a dismissal for delay under rule 24.05.
Plaintiff under Disability
(4) Unless the court orders otherwise, where the plaintiff is under a disability, an action may be dismissed as abandoned 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.
Setting Aside Dismissal
(5) An order under this rule dismissing an action may be set aside under rule 37.14.
[16] It is clear that as of January 1, 2010, the Rules now provided for a mechanism to administratively deal with actions where the court file only contained an issued claim but there had not been filed a Defence or Notice to Defend. Subject to the conditions set out in the Rule, Rule 48.15 now permitted the Registrar to dismiss an action which had not been defended.
[17] The apparent difficulty was whether Rule 48.15 could apply to actions which had been commenced prior to January 1, 2010 but had not been defended. In such cases, the party when it commenced the action had no reason to ensure or diarize that an administrative dismissal could or would occur in an undefended action. The application of Rule 48.15 to such actions could be unfair to the unsuspecting plaintiff.
[18] As a result the legislature amended Rule 48.15 to deal with a transition - cases which had been commenced prior to January 1, 2010. Notice to the profession was given. The plaintiffs were given two years to take a "step" in the action.
[19] Rule 48.15 was amended as follows:
ONTARIO REGULATION 394/09
made under the
COURTS OF JUSTICE ACT
Made: September 24, 2009
Approved: October 16, 2009
Filed: October 16, 2009
Published on e-Laws: October 19, 2009
Printed in The Ontario Gazette : October 31, 2009
Amending Reg. 194 of R.R.O. 1990
(Rules of Civil Procedure)
(2) Rule 48.15 of the Regulation is amended by adding the following subrules:
Transition
(6) In the case of an action commenced before January 1, 2010, other than an action governed by Rule 76 or 77, the
following rules apply, unless the court orders otherwise:
- If a step is taken in the action on or after January 1, 2010 and before January 1, 2012, subrule (1) applies as if the
action started on the date on which the step was taken.
- If no step is taken in the action on or after January 1, 2010 and before January 1, 2012, the action is deemed on
January 1, 2012 to be dismissed as abandoned on that date, unless the plaintiff is under a disability.
- An action deemed to be dismissed under paragraph 2 may be set aside under rule 37.14 and, for the purpose, the
deemed dismissal shall be treated as if it were an order of the registrar.
[20] As a result, Rule 48.15(1) would apply to undefended actions and to ensure that actions prior to Rule 48.15 coming into force were also dealt with, Rule 48.15(6) would apply to undefended actions commenced prior to January 1, 2010. However, these actions would get the benefit of an extended period of time to take a step - two years.
[21] Rule 48.14 for defended actions has worked well. It has been in place in excess of 20 years. There would be no reason why a "transition" rule like 48.15(6) would have been enacted to deal with defended actions during a specific two year window - 2010 to 2012. Rule 48.14 was already in place prior to and during this period.
[22] I accept the Defendant's submission that Rule 48.15(6), read in isolation, would appear to apply, on its face, to all actions, defended or not. It would appear to provide a deemed dismissal of any action if no step has been taken in any action from January 1, 2010 to December 31, 2011.
[23] However, Rule 48.15(6) should not be read in isolation. The purpose of its enactment is a legitimate tool of interpretation to determine the extent of its application.
[24] When the history of Rule 48.14 and 48.15 is considered, it is clear that Rule 48.15(6) was needed to specifically deal with undefended actions which had been commenced prior to January 1, 2010. This "transition" provision has a purpose. It is to deal with pre-2010 actions which have languished for two years without a defence being filed.
[25] To suggest that Rule 48.15(6) should apply to defended actions would ignore that these actions have already been administratively managed effectively for years including pre-January 2010 and during the past two years.
[26] I am satisfied that a proper interpretation of Rule 48.15(6) is that it is a transition rule which only applies to actions which come within the ambit of Rule 48.15, namely, undefended actions.
[27] If counsel can agree on a timetable to move this action along (including a date within which the action must be set down), I will sign the consent order. If counsel cannot agree on the disposition of this Status Hearing, counsel can arrange with the Trial Coordinator's Office to re-attend before me.
Cost of this attendance reserved.
Ricchetti, J.
DATE: February 9, 2012