September 1, 2010 By: Colin Dubeau
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The Rules of Civil Procedure impose a number of timelines that plaintiffs and their counsel must follow in order to protect against having their actions administratively dismissed. By way of example, the Rules set out that if an action has been commenced and no defence has been filed with the Court within 180 days, the action will be procedurally dismissed as abandoned. Similarly, if a defended action is not set down for trial within two years of a first defence being filed, the action shall be dismissed. Beyond these two limited examples, there are also numerous other occasions provided for in the Rules of Civil Procedure whereby actions shall be procedurally dismissed if certain steps are not taken within a timely fashion.

More often than not, insurers step into the shoes of defendants in the context of civil litigation. As a defendant, the insurer typically does not have the same concerns about moving the matter forward to avoid procedural dismissal. Despite this, however, when a plaintiff's action is procedurally dismissed, insurers are often faced with motions brought by the plaintiff to set aside the dismissal and reinstate the action. The insurer is then faced with the question of whether it ought to consent to or oppose that motion. This article is aimed at addressing some of the recent decisions on this issue with a view to helping adjusters, claims handlers and others in the industry better understand the factors that ought to be considered in determining whether to consent or oppose any such motion1.

Although the Court takes into consideration the factual elements of the particular case in considering whether to set aside an administrative dismissal, the following general principles can be gleaned from the case law:

  • Even though an administrative dismissal order is typically made by the Registrar, it is nevertheless an order of the Court; consequently, a party having notice of the order must treat it as valid and move promptly to set it aside.
  • The objective of the Court reviewing the Registrar's order is not to punish a party for technical non-compliance with the Rules of Civil Procedure, but rather to determine whether or not it is just to set aside the dismissal order under all of the circumstances.
  • The party seeking to set aside the administrative dismissal order must adduce evidence to:

    1. Explain the litigation delay that led to the administrative dismissal;
    2. Explain that it was only through "accidental oversight" of the plaintiff or counsel that the administrative dismissal came to be in the first place;
    3. Show that once the administrative dismissal came to the attention of the plaintiff or counsel, the motion to set it aside was brought promptly; and
    4. Show that setting aside the administrative dismissal and reinstating the action would not prejudice the defendant.

The following is a further explanation of these principles:

Explaining the Delay

Generally speaking, in order for the Court to grant a motion to set aside an administrative dismissal and allow the action to be reinstated, the plaintiff and/or plaintiff's counsel must adduce evidence to explain the litigation delay that led to the dismissal order in the first place. Although each case is distinct, the case law generally indicates that the plaintiff and/or counsel need only adduce evidence of having actually taken some steps to move the matter forward and that the plaintiff always maintained a demonstrable intention to maintain the litigation. Once these are established, the Court will typically move on to the second step in the analysis.

Explaining the Inadvertence

At the second stage of the analysis, the Court will require the plaintiff to adduce satisfactory evidence that the administrative dismissal resulted from "accidental oversight". Recent case law provides that the evidentiary burden of proving such "accidental oversight" will be met if, for example, a matter was not set down for trial in a timely fashion due to an electronic calendar "glitch" that did not generate an automatic reminder to counsel of the deadline.

Interestingly, however, the onus of proving "accidental oversight" was found not to have been met in a case where plaintiff's counsel was aware that a proceeding's timetable had to be amended by a particular date, but failed to move in a timely manner to amend it. In that case, the Court found the failure to amend the timetable in a timely manner to be "deliberate choice". Although the factual distinction between the two cases is relatively slight (that distinction seemingly being that, in the first case, plaintiff's counsel was unaware of the date by which the matter had to be set down, while in the latter case, counsel was aware of the date, but failed to act upon that knowledge), the implications of those minor factual differences are great: the first case having the dismissal order being set aside, while the dismissal order remained in place in the second case.

Moving Promptly to Set Aside the Dismissal

At the third stage of the analysis, the Court must consider whether the plaintiff moved promptly to set aside the administrative dismissal order once it came to the attention of the plaintiff or plaintiff's counsel.  In this analysis, however, it is important to note that the Court of Appeal has held that a two-year delay in bringing a motion to set aside an administrative dismissal was not so long that, by itself, the delay warranted allowing the administrative dismissal to stand.

Prejudice to the Defendant

The fourth factor considered by the Court in determining whether to set aside an administrative dismissal is whether such setting aside will result in prejudice to the defendant.

The Court of Appeal has held that where an action was commenced within the requisite limitation period but that limitation period has subsequently passed and the action is thereafter procedurally dismissed, there may be a presumption of prejudice. In cases where that presumption arises, the plaintiff bears the burden of rebutting the presumption on proper evidence. If the plaintiff is able to rebut that presumption, the onus shifts to the defendant to establish actual prejudice.

It is important to note that a bald assertion that, because of delay, witnesses' memories will be hampered does not constitute actual prejudice. The Court has found that this is particularly true where investigations, interviews, statements and the like were conducted and obtained immediately after the incident giving rise to the litigation occurred.

Conclusion

In determining whether or not to set aside an administrative dismissal order, all of the above-noted principles are important, but prejudice, or the lack thereof, to the defendant is typically the key factor considered by the Court. In considering whether or not there is such prejudice, the Court does not consider prejudice to the defendant that was inherent in facing the action in the first place, but only prejudice in reviving the action after it has been dismissed.

Insurers, adjusters and claims handlers ought to be mindful of the considerations to be taken into account by the Court on whether it will allow the setting aside of an administrative dismissal order. In understanding these considerations, insurers and their representatives will be better equipped to determine whether they ought to consent, oppose or take no position with respect to the plaintiff's motion to set aside an administrative dismissal order.


1Trajkovski v. Toronto Transit Commission, [2010] O.J. No. 3784 (SCJ); Wellwood v. Ontario (Provincial Police), [2010] O.J. No. 2225 (C.A.); Finlay v. VanPassen, [2010] O.J. No. 1097 (C.A.) and K. Laboratories v. Highland Export Inc., [2010] O.J. No. 3116 (SCJ)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.