While construction law lawyers are aware of the two year
limitation period contained in section 37 of the Construction Lien
Act, on January 1, 2015, significant changes were made to Rule 48
of the Rules of Civil Practice, which require all litigation
lawyers to modify their tickler systems for their non-lien
actions. In addition to this amendment, a new paragraph was
added to the Statement of Claim form which warns the parties of the
Rule 48 consequences.
This practice alert highlights the Rule 48 amendments, however,
as noted in the opening words in Rule 48.14, the Rule is subject to
an order which contains a set down date which differs from what is
contained in the Rule.
Pre-January 1, 2012 Actions:
Where an action is issued before January 1, 2012, and no order
has been made which establishes a "set down" date,
that action will be dismissed on January 1, 2017, without advanced
notice to the parties or their lawyers. In other words, if an
action is issued on September 24, 2011 and no order has been made
requiring the plaintiff to set the action down by a certain date,
that action will be dismissed on January 1, 2017.
Post-January 1, 2012 Actions:
Where an action is issued on or after January 1, 2012, and no
order has been made which establishes a "set down" date,
that action will be dismissed 5 years following the date the action
was issued, without advanced notice to the parties or their
lawyers. In other words, if an action is issued on December
24, 2013 and no order has been made requiring the plaintiff to set
the action down by a certain date, that action will be dismissed on
December 24, 2018.
If an action is dismissed under this new Rule, the registrar
will send a dismissal order to all parties and a lawyer served with
a Rule 48 dismissal order must promptly give a copy to his or her
To avoid a dismissal order, at least 30 days prior to the
dismissal deadline, parties can agree upon and file a timetable and
draft order. If the plaintiff cannot however secure the
consent of the parties, the plaintiff can request a status hearing
and show cause why the matter should not be dismissed for delay. At
a status hearing, the court can dismiss the action, adjourn the
hearing, make a Rule 77 case management order, or set deadlines for
completion of the steps necessary and a deadline to set the action
down for trial.
To determine the status of an action, a Case History will
disclose whether the action has been dismissed and/or if a Status
Notice served prior to January 1, 2015 has been
Finally, the new wording which should appear in statements of
claim issued after January 1, 2015, provides as follows:
"TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE
DISMISSED if it has not been set down for trial or
terminated by any means within five years after the action was
commenced unless otherwise ordered by the court."
Originally published in OBA Construction &
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.
Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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).