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Perils of slow moving actions

in Education by admin / February 18,2014

Recent decisions out of the Court of Appeal and Masters court has shown a fairly hard-line stance taken by the courts for actions that have unexplained delays in their first 2 years. The parties to an action that has not been set down for trial after 2 years automatically receives a Status Notice from the courts. A defendant has 2 options consent to a timetable going forward or force the plaintiff to show cause why the action should not be dismissed.

If a defendant forces a show cause hearing, the plaintiff has the onus of explaining the steps in the case, why it has not yet been set down for trial and why there is no prejudice to the defendant if the case continues. If there are gaps in time with unexplained inactivity, the plaintiff will have a tough time proving cause. The explanation must be based on, compelling and convincing evidence (Semaan v. OneWorld Energy Inc. [2013] O.J. No. 4077, Master Haberman). The lawyer’s inadvertence is not an acceptable explanation (Saini v. Sun Life Assurance Co. of Canada [2013] O.J. No. 3125, Morgan J.).

This new approach is a shift from the former approach that effectively used status hearings to put an action back on track. The status hearing was almost treated as a warning. The courts have unequivocally determined that the responsibility of moving an action along lies chiefly with the plaintiff. This runs counter to the general principle that the courts prefer to decide a case on its merits as opposed to disposing of a case on procedural grounds.

Litigation lawyers and clients alike have to be aware of this change in attitude. The recent case law underscores the importance of litigation lawyers having proper bring forward and file review procedures to ensure that there is consistent activity on a file. The courts have said that a client cannot rely on its lawyer holding the file in abeyance as sufficient to show cause.