In the Ontario legal landscape, advancing legal actions in a timely manner is not only critical to the success of an action, but also the preservation of access to justice for all participants in our legal system.
Unfortunately, the civil Courts have been systemically impacted by delay. This is of the utmost concern given the vast quantum of claims in the Small Claims Court, where required attendances prior to a trial are minimal. Compounding this systemic delay is that some cases simply languish, seemingly abandoned by the parties and/or inadvertently not advanced.
As of May 13, 2024, administrative dismissals have resumed, read our blog on the resumption of Administrative Dismissals. As such, Superior Court civil actions commenced prior to November 12, 2018, not set down for trial and to which Rule 48.14 of the Rules of Civil Procedure apply, will be subject to administrative dismissal beginning May 13, 2024, as will Small Claims Court actions not set down for trial by the second anniversary of the commencement of the action per Rule 11.1.01(1) of the Rules of the Small Claims Court.
Defendant litigants would be wise to prepare to oppose motions brought to set aside administrative dismissals. I was recently successful in opposing a motion to set aside a dismissal for delay brought within the appropriate time period. Despite being actively involved in the litigation, the Plaintiff and his representative failed to set the matter down for trial following the settlement conference or communicate with the defendant.
Factors to Consider in Opposing a Motion Seeking to Set Aside a Dismissal for Delay
There are several factors to consider when either arguing to set aside a dismissal for delay or combatting the setting aside of such an order. The Court of Appeal in Scaini v. Prochnicki (2007 ONCA), adopted the following test (the Reid factors)[1]:
- Whether the plaintiff provided a satisfactory explanation for the litigation delay;
- Whether the plaintiff led satisfactory evidence to explain that they always intended to prosecute the action within the time limit set out in the rules or a court order but failed to do so through inadvertence;
- Whether the plaintiff demonstrated promptness in bringing the motion to set aside the dismissal; and
- Whether the plaintiff has satisfied the court that there is no significant prejudice to the defendants in presenting their case at trial as a result of the delay or steps taken following the dismissal.[2]
The first two steps can be more succinctly approached through the lens of (1) explaining why the inadvertence occurred, and (2) if not for the inadvertence, that the party had always intended to prosecute the action in a timely manner.
The Court has generally held, the longer the delay, the more robust the explanation which is required to set aside the dismissal.[3] The wording of ‘inadvertence’ may deceive some parties into believing that an inadvertent error or innocent mistake may provide them some safety when facing the Court; however, the Court has confirmed that the delay not being intentional simply does not absolve the Plaintiff of the responsibility to move the action forward.[4] Conversely, there is no burden on a defendant to explain the delay in an action, or to move that action to trial.[5]
The Courts continue to reiterate the age-old adage “rules are made to be followed”. In fact, the Court of Appeal has affirmed that:
“If the common submission, as made here, to the effect that a dismissal would be unfair to the plaintiff is permitted to always trump the provision in the rules contemplating a reasonably timely procedure for the disposition of actions, then the rule would be effectively gutted”.[6]
Not only does the explanation for delay need to be reasonable, but there needs to be concrete evidence that the party intended to prosecute legal action. The Court has affirmed that statements to this effect are not satisfactory evidence, nor do they provide an adequate explanation of the failure to proceed with the action through inadvertence. [7] Simply put, submissions are not a replacement for concrete evidence before the Court, or evidence of the steps taken by a party to prompt their lawyers in a timely manner.[8]
The Role of Prejudice
One of the central factors in cases concerning delay is whether the delay has caused prejudice to the other party. Prejudice can take many forms, including the loss of key evidence due to the passage of time, or the impact on the defendant’s ability to mount an effective defence.
Ultimately, the longer the delay the greater the presumption of prejudice. There is also a presumption of prejudice after the expiry of a limitation period, which is clearly at play in these circumstances. Importantly, the onus is on the plaintiff to adduce evidence to indicate why the Court should conclude that the defendant will not suffer prejudice.[9]
In contrast, there is no requirement for the defendant to adduce evidence of actual prejudice, particularly given prejudice can be inferred from the mere passage of time.[10] Nonetheless, if you are an institutional party, you may be concerned that prejudice may not be inherently applicable; however, the Court has affirmed that the perennial adage, “justice delayed is justice denied” should benefit a defendant as much as a plaintiff where circumstances warrant.[11]
Conclusion
Ultimately, the Courts continue to interpret the Rules in a manner that provide appropriate incentives to those involved in the civil justice system. Maintaining a dismissal, if necessary, may be of particular importance in ensuring that any delays are rectified, and that parties are provided ample opportunity to advance the action as well as explain any inordinate circumstances.
We would advise institutional clients, and insurers, to ensure all relevant limitation periods are documented accurately with calendarized reminders and follow-up, and to ensure that there is active communication between the litigant and counsel. Parties should keep in mind the importance of documenting all steps taken to advance an action and ensuring that there is written conformation of any and all steps taken to prosecute an action.
Most importantly, if parties intend to initiate an action, they will certainly be required to move it along: delays in advancing actions have a profound impact on access to justice for all litigants in Ontario, and parties should be prepared to explain any such inadvertence to the Court.
[1] Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.)
[2] Scaini v. Prochnicki, 2007 ONCA 63 (CanLII), (2007), 85 O.R. (3d) 179, at para. 12
[3] Erland v. Ontario, 2019 ONSC 462 at para. 10
[4] Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671 at para. 18.
[5] Jadid v. Toronto Transit Commission, 2016 ONCA 936, at para. 23
[6] 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 (CanLII), [2012] O.J. No. 3877
[7] Muscaj v. Urszula, 2018 ONSC 5427 at para 60.
[8] Muscaj v. Urszula, 2018 ONSC 5427 at para 58.
[9] Prescott v. Barbon, 2018 ONCA 504, at para. 36 & 39.
[10] 1196158 Ontario Inc., supra, at para. 32.
[11] Muscaj v. Urszula, 2018 ONSC 5427 at para 56.