*Since the writing of this blog, affirming ONCA decision, not appealed to SCC, not overturned.

On June 1, 2018 the Court of Appeal released its decision in Prescott v Barbon, 2018 ONCA 504.  The Court  rejected an appeal from the Superior Court decision given by Justice Freya Kristjanson, which set aside Master Hawkins’ decision to overturn a registrar’s administrative dismissal of the matter as abandoned.

The Matter was dismissed as abandoned under Rule 48.15 which has since been repealed.  The timeline of the delay and subsequent abandonment was particularly egregious in this matter:

  • The Accident occurred on December 28, 2008
  • The Plaintiff brought an action on December 29, 2010
  • There was no subsequent action from either party, and on July 11, 2011 the registrar sent notice that the action would be dismissed as abandoned if the Plaintiff failed to act within 45 days.
  • On August 25th, 2011 (34 days later), the registrar dismissed the action as abandoned 
  • The lawyer failed to inform their client of this, and only reported the matter to LawPRO  in December 2013.
  • The lawyer unsuccessfully attempted to negotiate setting aside the dismissal before eventually bringing a motion to do so in February 2014, two years and six months after the dismissal.

Master Hawkins heard the motion in June and September 2015, eventually overturning the dismissal on December, 2015 almost 7 years after the accident.

Justice Kristjanson of the Superior Court found, however, and the Court of Appeal agreed, that the Master erred for three main reasons:

  1. He failed to consider the entire statutory scheme relating to administrative dismissals;
  2. He erred in finding the respondents partially responsible for the administrative dismissal; and,
  3. He failed to consider the principle of finality in the prejudice portion of the test set out in Reid.

Repeal of Rule 48.15(1) and Legislative Context

This case dealt significantly with the change in the registrar’s ability to dismiss an action as abandoned. 

Prior to the changes, Rule 48.15(1) mandated that the registrar make an order dismissing an action as abandoned according in the following situation:

  1. More than 180 days had passed since the originating process was issued;
  2. A statement of defence, notice of intent to defend, or notice of motion in response to an action had been filed;
  3. The action had not been disposed of by final order or judgement;
  4. The action had not been set down for trial, and;
  5. The registrar gave 45 days notice in Form 48E that the action would be dismissed as abandoned.

Under this Rule an action that was commenced which saw no movement from either side could be dismissed as quickly as 180 days plus 45 days notice after it commenced.

After Rule 48.15 was repealed, Rule 48.14 was amended to include the following provision on dismissing for delay:

Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):

1.    The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017

In the Master Hawkins’ decision, he wrote that the repeal of Rule 48.15(1) should be considered part of the context in which the motion to set aside the dismissal order was being heard, noting:

“What now constitutes an acceptable level of diligence in the prosecution of an action is a much easier test to meet than was the case in the past”

Masters Hawkins was alluding to how the amended rules are more generous with respect to delays than the repealed ones, and felt that this consideration should come into play when evaluating dismissals, even when they were ordered under the old rules.

Both the Superior Court as well as the Court of Appeal found this to be an error, as Rule 48.15, though repealed by the time of the motion, was in full effect at the time of dismissal.

While the Superior Court judge was very critical of the Master’s treatment of the repeal of Rule 48.15, saying that it was being used as a “get out of jail free card”, Justice Pepall in writing for the unanimous panel of Watt JA and Miller JA of the Court of Appeal, said the error was not the Master failing to consider the repeal of 48.15, but rather improperly applying it to the context of the proceedings.  In this instance, because the dismissal order was given prior to the repeal of 48.15(1), the time set out in that Rule should still be the one applied.

Primary Responsibility for the Action’s Progress Lies with the Plaintiff

Another grounds on which Master Hawkins set aside the order, which was ultimately overturned by the Justice Kristjanson and Justice Pepallwas the notion that the Respondent (the Defendant in the original action) bore a portion of the blame for the lack of movement in the action, specifically noting that:

            “neither defendant took the simple step of serving and filing a notice of intent to defend”

Justice Pepall rejected this, citing the decision in Jadid v Toronto Transit Commission, for the principle that there is no burden on the defendant to explain the delay or move the action to trial.

Considering Finality in Finding Prejudice

Master Hawkins used the test in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), to evaluate whether or not to set aside the registrar’s dismissal.

The fourth and final part of that test is:

“Have the plaintiffs convinced the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiffs’ delay or as a result of steps taken following the dismissal of the action?”

Master Hawkins was not satisfied that there had been any prejudice proven against the Defendant, despite seven years having passed since the accident.

Both the Superior Court and Court of Appeal agreed that Master Hawkins erred in this finding.  

Justice Kristjansen cited the decision in Marché d’Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, which considered the principles of finality and security of legal position as part of the test for prejudice.  In particular, this quote from the decision in Marché was relevant to the matter at hand:

“Even when the order dismissing the action was made for delay or default and not on the merits, and even when the party relying on the order could still defend itself despite the delay, it seems to me that at some point the interest in finality must trump the opposite party’s plea for an indulgence.”

Justice Kristjansen decided, and the Court of Appeal affirmed, that this case represented an unacceptable degree of inaction by the Plaintiff which amounted to prejudice to the Defendant’s right to finality and security of legal position.

This decision helps to clarify how a Rule which has since been repealed ought to be applied by the court as part of the context of a current action.

Additionally, this decision affirmed the principle that a party who begins an action will be primarily responsible for its advancement throughout the court, even if that means noting a Defendant in Default.

Lastly, this decision reads in the principle of finality and security of legal position as part of the prejudice portion of the test for administrative dismissal set out in Reid.

If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222