Civil Procedure – Restore Action to Trial List
– Test for Rule 48.11, Rules of Civil
When a plaintiff seeks leave to restore an action to the trial
list under Rule 48.11, the court will consider the same factors as
though the defendant moved to dismiss the action for delay under
Rule 24.01. A plaintiff in this situation must be prepared to
explain any delay in prosecuting the matter and further rebut
evidence of actual or presumed prejudice resulting from the delay
that may be raised by the defendant.
In this case, the plaintiffs' action was commenced in
September 1999, based on allegations stemming from the
plaintiffs' purchase of a restaurant, the Wineyard, in or about
May 1999. In 2001, the action was struck from the trial list in
order for the plaintiffs to add a new defendant. No steps had been
taken by the plaintiffs after 2008. The motion to restore the
action to the trial list was brought in January 2011.
Rule 48.11 provides discretion to the court to grant leave to
restore an action to the trial list. There is scant existing
jurisprudence for this Rule. In this case, Justice Backhouse
followed Master Graham's recent decision in Ruggiero v. FN
Corp., 2011 ONSC 3212, which held that the factors governing
the court's discretion are analogous to those governing the
court's discretion to dismiss for delay. These are:
Was the plaintiff's delay intentional and
If not, is there an inordinate and inexcusable delay in the
litigation for which the plaintiff or his solicitors are
responsible, such as would give rise to a presumption of
If so, has the plaintiff provided evidence to rebut the
presumption of prejudice arising from the delays?
If so, have the defendants provided evidence of actual
On the facts, Justice Backhouse found that the plaintiffs had
not complied with Rule 24.01(1)(e), requiring the plaintiffs to
seek leave to return the action to the trial list within 30 days of
it being struck. Justice Backhouse limited the plaintiffs'
default, however, as she found that the plaintiffs had not caused
inordinate or inexcusable delay, such as would give rise to a
presumption of prejudice. Further, she found that there was no
evidence that the defendants had suffered actual prejudice and that
although the plaintiffs had leisurely prosecuted the action, there
was no intentional or contumelious delay. She held that it was
significant that the defendants had not moved earlier to dismiss
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).