EFFECTIVE JANUARY 1, 2015, RULE 48 OF ONTARIO'S RULES OF
CIVIL PROCEDURE UNDERWENT SIGNIFICANT CHANGES. THE
"NEW" RULE 48 PROCESS CHANGES THE PROCEDURE FOR
ADMINISTRATIVE DISMISSALS OF CIVIL ACTIONS IN A WAY THAT ALL
ONTARIO LITIGATORS MUST BE AWARE OF AND MUST BE PREPARED TO
The "old" Rule 48 procedure was intended to reduce
inefficiency by requiring litigants and their lawyers to organize
civil proceedings toward resolution or trial in a more diligent
fashion (i.e., two years, subject to Court permitted extensions).
However noble the intent, the "old" Rule 48 procedure did
not work, caused unwanted and unnecessary bureaucracy and
ultimately created greater inefficiencies in the form of status
hearings, inadvertent administrative dismissals, and the plethora
of motions to set aside those dismissals. In many ways, and in many
jurisdictions, it proved impractical to prosecute a civil action
from the date of the issuance of claim to setting down for trial in
merely two years. The "new" Rule 48 will, hopefully, be
more in tune with the practical challenges that lawyers and
litigants face and more in keeping with judicial resources, while
at the same time encouraging the diligent prosecution of civil
There are features of the "new" Rule 48 that
litigation lawyers should be aware of and, where necessary, should
consider changing their administrative procedures and calendar
First, the revisions to Rule 48 have changed the language that
is used in the preamble paragraphs used in Statements of Claim and
Notices of Action (Forms 14A and 14C). Those pleadings must now
include the following sentence (immediately above the Local
Registrar's signature and the date):
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.
At the Toronto Courts, the Court office has refused to issue
Statements of Claim or Notices of Action lacking this new language.
It would be prudent for counsel to ensure that whatever precedents
they are working from include this language. It would be
unfortunate for counsel to miss a limitation period by virtue of
having a pleading rejected by the Court office for lacking this
paragraph in the preamble.
It is also noteworthy that the process under the new Rule 48
does not contemplate that the Court will issue notices in advance
of automatic dismissals. Under the "old" Rule 48 regime,
the Court would issue a notice to advise lawyers that an Action
would be dismissed in ninety days' time, unless certain steps
were taken (i.e., scheduling a Status Hearing, or setting the
matter down for Trial). Such notices will no longer be sent. It is
up to counsel to diarize matters for themselves, as described
below, to ensure that steps are taken to prevent the automatic
dismissal of proceedings.
The new Rule 48 states that the Registrar "shall dismiss an
action for delay" by the later of the 5th anniversary of the
commencement of the action and January 1, 2017. For example, an
action commenced in 2005 shall be dismissed for delay on January 1,
2017 whereas an action commenced in 2013 shall be dismissed for
delay in 2018. Because no notices of impending dismissal will be
issued by the Court, prudent counsel ought to diarize the five year
anniversary of the issuance of every Statement of Claim issued on
or after January 1, 2012. Each such action will have a different
five year anniversary date on which it will be automatically
dismissed by the Registrar (unless it has been set down for trial
or otherwise terminated). For all other matters, that is those
commenced prior to January 1, 2012, it would be prudent for counsel
to diarize January 1, 2017 as the date upon which they will be
automatically dismissed by the Registrar (unless set down for trial
or otherwise terminated before that time).
There are other aspects of the "new" Rule 48 that
litigation lawyers will need to become familiar with in the months
and years ahead. However, these are a few practical aspects of the
"new" Rule 48 that all counsel ought to consider at the
earliest stage in order to avoid pitfalls in the future.
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.
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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.
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