Tuesday, June 4, 2013

Under what circumstances should an action be dismissed by the court following a status hearing?

Faris v. Eftimovski, 2013 ONCA 360 holds that on a status hearing rule 48.14(13) says that the onus is on the plaintiff to demonstrate why the action should not be dismissed for delay. The test requires the plaintiff to demonstrate that there was an acceptable explanation for the delay and establish that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice:

[39]       In the case of a status hearing, however, an opportunity for the court to consider dismissing an action for delay will not arise for a considerable period of time after the proceedings have been imitated. Rules 48.14(1) and 48.14(2), which trigger the requirement that the registrar issue a status notice, contemplate delinquency by plaintiffs which exceeds that under rule 24.01.

[40]       Rules 48.14(1) and 48.14(2) provide that where a defended action has not been placed on a trial list within two years after the first defence is filed or restored to the trial list within 180 days of being struck out, the registrar shall serve a status notice on the parties indicating that the action will be dismissed for delay unless it is set down for trial within 90 days after service of the notice.

[41]       The onus placed on the plaintiff under rule 48.14(13), therefore, is mandated not only by the plain wording of the rule but also by the greater severity of the plaintiff's delinquency in pursuing its claim. In other words, at this juncture, the emphasis on the objectives expressed in rule 1.04(1) to "secure the just, most expeditious and least expensive determination of every civil proceeding on its merits"  must necessarily shift towards ensuring that disputes be resolved expeditiously and in a time-efficient manner.

[42]       Therefore, I conclude that the status hearing judge in the case at bar was correct to place the onus on the appellant and to apply a test similar in principle to one recently confirmed by this court in 1196158 Ontario Inc. At para. 32 of1196158, the court held that a plaintiff bears the burden of demonstrating that there is an acceptable explanation for the delay in the litigation and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.

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