Courts Control Their Own Process – Ottawa Personal Injury Cases At Risk of Dismissal
The Ontario courts control their own process and can on its own initiative dismiss court actions which are being unduly delayed without just cause. An example of this is the operation of rule 48 of the Ontario Rules of Civil Procedure. That rule states in part that “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 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).”
In a recent Ontario court, a judge has decided that flexibility is in order when it comes to imposing time lines in civil litigation cases. Some personal injury lawyers argue that rule 48 wastes time and takes up valuable court resources while others are pleased with imposing stricter time periods in court actions. Prior to the implementation of rule 48, lawyers largely controlled the time lines in the conduct of a litigation file, but always subject to court intervention in the event a party was dissatisfied with the movement of the court action.
In February, 2013, the Hon. Master D. E. Short decided that rule 48 shouldn’t outright tromp the right of citizens to have access to justice. In his lengthy ruling, His Honor suggests what is necessary to contest a dismissal at a status hearing and comments on a fair application of rule 48. In part, he wrote “while I agree that discouraging delay and judicial involvement in moving cases forward is highly desirable, I am not convinced that the existing case law establishes or ought to establish this result as trumping the other desirable goals of access to justice and resolution on the merits.”
Rule 48 was initially designed to weed out cases which were being unreasonably delayed. The rule specifies what is required to avoid a registrar’s dismissal of the action. To avoid a dismissal, it is incumbent on the parties, and in particular the plaintiff’s counsel to move the case along or seek extensions of time lines outlined in the Rules of Civil Procedure. Under the new rule, unless the court orders otherwise, the registrar can dismiss court actions that don’t make their way onto the trial list within two years after the defence is filed. For many lawyers, this rule has caught them by surprise and has been the subject of many motions seeking to set aside dismissal orders.
The application of this rule in the context of personal injury actions is particularly concerning given that in many cases, a court action is commenced simply to meet the limitation, but under circumstances in which the client is far from healed from all of their injuries. In Ontario, the basic limitation period is two years from the date the cause of action arose. In many cases, accident victims do not recover from their injuries within the two year period and are forced to commence a court action to simply meet the limitation.
As experienced Ottawa personal injury lawyers, we are trained in ensuring that our clients meet all of the time limitations imposed upon them pursuant to the Rules of Civil Procedure. Our lawyers regularly attend continuing legal education seminars to ensure that they are familiar with all aspects of the rules and laws applicable to personal injury actions.
To learn more about your rights and interests as a victim of an accident in Ottawa or anywhere else in Ontario, contact one of our lawyers free of charge at 613-315-4878.
This brief case summary is provided for information purposes only and is not legal advice.
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