Changes in the Ontario Rules of Civil Procedure, in 2015, extended the length of time allowed before a matter is brought to trial, but professional liability insurer Lawyers’ Professional Indemnity Company (LawPRO) advises lawyers of the risks that remain, and actions they can take to avoid an administrative dismissal claim.
Rule 48.14: Burdens, Risks and Costs
In Ontario, prior to January 1, 2015, Rule 48.14 of Ontario’s Rules of Civil Procedure was creating a headache for lawyers and the courts alike. The rule required that a statement of defence, notice of intent to defend, or a motion contesting jurisdiction be filed within six months of the issuance of an originating process; and that an action must be set down for trial within two years of its commencement. If either deadline was not met, the matter was automatically dismissed with notice.
The rule was intended to ensure that matters were litigated without delay. In practice it resulted in motions to extend the deadline or set aside the dismissal, overburdening the court’s resources and often resulting in negligence claims against the lawyer when the motion was denied. LawPRO felt the pinch, too. It reported several hundred claims and almost $10 million in claims costs in just three and a half years.1
Is the New Rule an Improvement?
The Civil Rules Committee recognized that maintaining the old Rule 48.14 was untenable, and on January 1, 2015, the rule was updated, providing a more lenient timetable for taking matters to trial. Under the new rule, proceedings that are not set down for trial or concluded within five years after their commencement (or January 1, 2017, whichever is later) will be automatically dismissed, without notice.
Not everyone thinks the new rule is an improvement. Some say the new deadline will mean that matters will take longer to resolve.2 Others, like LawPRO, fear that administrative dismissals will continue, despite the more lenient timeline. From our experience, many lawyers are still surprisingly unaware of the rule, so LawPRO’s fears may be justified.
The Top Reasons for Missed Deadlines
LawPRO, recognizing the continuing risks and costs of administrative dismissals, has published a Rule 48.14 Transition Toolkit3. The toolkit includes a summary of the most common reasons that actions are not set down on time – scenarios that all firms should be watching for, in order to avoid administrative dismissal. Here are LawPRO’s top three:
- A weak file. This typically results from poor evaluation of a file at the time of retainer, or because a re-evaluation didn’t occur when circumstances changed.
- A junior lawyer is overwhelmed. This occurs when a senior lawyer assigns responsibility for a file to a junior who is overwhelmed with the workload and too embarrassed or intimidated to speak up.
- A lawyer’s personal crisis or unexpected hiatus. When a lawyer takes an unexpected leave, due to illness, substance abuse or family emergency, the follow-up on several files, or even an entire practice, can be disrupted, triggering multiple administrative dismissals.
How to Prevent Administrative Dismissals
LawPRO’s toolkit contains valuable tips, checklists and templates that lawyers and firms can take to prevent dismissals, with recommended systems and processes to ensure that deadlines are met and files are kept moving. Here are some highlights:
- Ensure your tickler system is populated properly, that deadlines reflect the new administrative dismissal rule, and that staff is well-trained in the use of the system.
- Establish a timetable for each matter and tickle start and finish reminders for each step in the litigation. Send each tickler to at least two individuals at the firm.
- Create file progress plans for all open files to ensure the work on individual files is actively managed and monitored. Implement a process to transfer a file if the responsible lawyer becomes unable to carry it.
- Generate a monthly inactive files report, and review those that have had no activity for 90 days.
With just a few easily-implemented processes like these, and adequate systems to support them, firms can reduce or eliminate many of the claims risks and costs associated with Rule 48.14 and administrative dismissals.
Korbitec produces ACL, the leading document assembly software for Canadian civil litigators. ACL includes a tickler system that allows you to create and assign specific tasks to your litigation files, synchronize tasks with Microsoft Outlook®, and receive email notifications of upcoming tasks.
1 Tim Lemieux, “Rule 48 Transition Toolkit helps you avoid administrative dismissal claims”, Practice Pro. 11 Aug. 2015. Web. <http://avoidaclaim.com/2015/rule-48-transition-toolkit-helps-you-avoid-administrative-dismissal-claims/>.
2 Scotchmer, Kit. “Hands Off or Hands On? the 2015 Changes to the Rules of Civil Procedure.” LinkedIn Pulse. 28 Sept. 2015. Web. <https://www.linkedin.com/pulse/hands-off-2015-chances-rules-civil-procedure-kit-scotchmer>.
3 LawPRO. “Rule 48 Transition Toolkit.” Practice Pro 2015. Web. <http://www.practicepro.ca/practice/pdf/Rule48-Toolkit.pdf>.