If personal injury case goes to court, it can sometimes be a long and time consuming process. There are many stages in the filing of a claim and it is important that you receive counsel from an experienced and competent Ontario personal injury lawyer. If you do not adhere to time specifications, your claim can be dismissed before it even goes to trial.
There have been a few significant changes in the Civil Rules of Procedure in relation to administrative dismissals; Rule 48. A few are mentioned below.
- If five years have passed after the beginning of any motions started on or after January 1st 2012, they will be dismissed automatically without notice unless deemed otherwise by the court.
- Any action that has been removed from the trial list after January 1st 2015 and not reinstated within two years thereafter will be dismissed on that two year anniversary date without notice to any of the affected parties.
- A registrar can serve dismissal orders (Form 48D) to all parties and this must be shown to the clients by their lawyers as soon as possible.
If your action has been dismissed, there are ways to get your motion back on the trial listing.
- A timetable and draft order can be filed with the consent of all parties involved. This has to be done at least thirty days before the dismissal deadline. This order should outline the dates and stages for the completion of the process (must be within two years after the dismissal deadline). If successfully completed, the suit will be added back to the trial list.
- If all the parties do not agree to a timetable, the party requesting the overturning of the dismissal can request a status hearing. This is where a plaintiff must prove just cause why the matter should not be dismissed. If completed, one of many rulings can be made for example adjournment, dismissal or a Rule 77 (case management order).
- A dismissal of a suit (via Rule48.14) can be set aside ( via Rule 37.14)
In the case of George Karr v. Allstate Insurance Company, such a matter was decided upon when the plaintiff attempted to claim for statutory accident benefits. The main issue was that this accident that took place in July of 1999 and the suit began in June of 2007.
Below is a table chronicling the progression of the motion.
|July 29th 1999||Date of the car accident|
|June 29th 2007||Statement of claim issued|
|June 12th 2008||Plaintiff examined for discovery|
|January 22nd 2010||Defendant examined for discovery|
|April to May 2010||Information exchanged between parties concerning mediation|
|July 13th 2010||Status hearing heard|
|September 10th 2010||Statement of claim and statement of defence were amended (within suggested time period)|
|February 1st 2011||Local registrar issued a dismissal of action for delay pursuant to rule 48 (copies were sent to both plaintiff and defence)|
|June 2nd 2011||Plaintiff contacted defence proposing dates for discovery|
|June 14th 2011||Defence conveys that the action was administratively dismissed and would not submit anyone for discovery|
|Ending January 2012||Plaintiff’s solicitor claims the he has now been alerted to the fact that the action had been dismissed after conducting a file review. Attempts unsuccessfully to file a trial record which the defence denies receiving|
|May 24th 2012||Plaintiff’s rep inserts that the defence was notified to consent of a motion to set aside the dismissal (being disputed by the defence)|
|June 12th 2012||Motion seeking to set aside the dismissal of action is prepared|
Below is the breakdown and analyzing of the issues addressed in court.
- In this case the defence argued that there was an unnecessary and significant delay in litigation by the plaintiff, citing the fact that the accident happened in 1999 and that there was little no action after the examination for discovery in January of 2010.
- The plaintiff started the action in June 2007 and the early exchange with examinations for discovery was completed in January 2010. While the representative for the plaintiff was moving at an unnecessarily slow pace in making arrangements for mediation, in July of 2010, it was made clear at a status hearing that the case was moving forward.
Ruling: The Judge felt that though the case at that time was progressing at a slow pace and that the there were unnecessary delays by the plaintiff’s representative, they were not excessive to the point to warrant a dismissal.
- The plaintiff’s counsel cites a change in staff as the reason for not being aware of the notification to dismiss sent by the defence In June 2011.
Ruling: As inadvertent as this may be, it did not explain the incompletion in the scheduling of discoveries on their part in January 2011 which would have allowed for a hearing in June of 2011. The Judge felt that these actions, while unintentional, were easily avoidable and just a sign of negligence on the plaintiff’s solicitor’s part.
Notification of Dismissal
- The plaintiff’s lawyer asserts that he was not aware of the order for dismissal until January 2012 even though in June 2011 a letter from the defence was sent to his firm. He claims there was a change in staff and the letter was overlooked. He also claims to have not received a copy from the court directly as he should have in February 2011.
Ruling: The plaintiff’s lawyer did not follow up on the simple procedures regarding his client’s claim. When the defence of his actions were taken into consideration, it was seen that even after he was aware of the issue in January 2011 he inexplicably took no action until May 2012.
- The defence states that they are unfairly prejudiced because both the elimination and time limitation periods have passed. There are still required documents that have not been submitted to them by the plaintiff and the testimony of witnesses who would be presented would not be as reliant as so much time has passed. They also argue that the delay does not allow for a fair and quantifiable summation of the claim.
- The plaintiff has supplied relevant document in rebuttal to this claim and they argue that at this stage, only disability and not the circumstances of the accident are relevant and that all evidence from their physicians are readily available. No witnesses are need at this time.
Ruling: The Judge felt that while time does somewhat impose prejudice against the defence it will not affect their case significantly to result in disfavor or disadvantage; especially in comparison to what an outright dismissal would pose to the plaintiff’s case.
After scrutinizing all the relevant evidence and applicable jurisprudence, the Judge decided that the plaintiff should be allowed the order to set aside the dismissal. There was no real unfair prejudice to the defense and it was noted also that the order for dismissal was issued five months prior to the elimination date which in turn impacted the case.
It is very important that you are aware of the progression of your claim and that you have a lawyer who has your best interest at heart. At Rastin & Associates, we pride ourselves in efficiency, professionalism and compassion. Call us today or visit us online to get a free initial consultation.