"The Rules of Civil Procedure are Largely Discretionary"?
I distinctly remember a conversation between myself as a young lawyer and an older, opposing counsel in which he advised me that "the Rules of Civil Procedure are largely discretionary." In other words, he had no intention of even attempting to adhere to the Rules of Civil Procedure because, in his experience, Ontario courts failed to enforce those Rules. My subsequent experience suggested he was correct. Actions in which Statements of Defence, Replies or Discovery are served timely are rare. Matters languish.
This situation is exacerbated by a backlog in the courts. Motions must often be booked months in advance. It is easier, and often more prudent, to agree to any proposed extension rather than to incur the expense of bringing a delayed motion in which the suggested extension will likely be granted. The system serves the party, or their counsel, who wishes to delay justice.
Additionally, the system serves to allow some counsel to neglect or even ignore files without threat of consequence. A recent Divisional Court appeal, Nadarajah v Lad, dealing with an administrative dismissal illustrates this point.
In March 2009, the Plaintiff allegedly was injured in a motor vehicle accident. he retained the services of a lawyer in June 2010. The Statement of Claim was issued in March 2011 just days before the expiry of the limitation period. The lawyer waived delivery of a timely defence so that settlement discussions could proceed.
As the defence was not filed, the court issued a Notice of Dismissal on August 31, 2011. Responsibility of dealing with the Notice was assigned to an articling student. Unfortunately, that particular student suffered from a substance abuse problem. No work was done to address the pending dismissal. The firm involved did not have any system to diarize such matters. Additionally, as they failed to supervise their articling students, no follow up was done regarding the student's assignment. On October 25, 2011, the Registrar dismissed the action.
The lawyer learned of the dismissal in October 2011. However, a motion to set aside the dismissal was not heard until December 2014, roughly 39 months later. This was not solely the fault of the court, although delay in obtaining motion dates likely played a role. In bringing the motion there was "much delay and false starts." Motion dates were booked and lost because of failure to draft, serve and file materials. Eventually, when the motion was heard, it was dismissed. The plaintiff appealed.
Divisional Court dismissed the appeal. In doing so, it considered whether "inadvertence in missing the deadline", which only included non-deliberate action or whether negligent action could also be inadvertent as the motion Master had found that the dismissal resulted, not from a deliberate choice but rather from a passive decision to ignore the matter. Divisional Court concluded that a "slip or accident," i.e. conduct that would be described as negligent, could be inadvertent. This included a failure to implement a tickler system to track file progress and dismissals. This inclusion is likely to provide grounds for future motions seeking the setting aside of dismissals.
Despite the conclusion that inadvertence could include failure to implement a system to monitor files, the Divisional Court concluded that the lawyer's actions were particularly blameworthy because of the utter failure to have a reasonable system in place to deal with the peril of dismissal and to supervise the work of student. The lawyer chose to address other matters that he considered more critical rather than address this particular dismissal. In concluding, Divisional Court stated "the length of delay and egregious conduct of plaintiff's counsel take this matter over the edge."
One must question why a 39 month delay, complete failure in supervising assigned work and a failure to implement a system to monitor matters are barely sufficient to "take the matter over the edge." The lawyer was able to meet a filing deadline in issuing the claim within the limitation period. This selective ability suggests that the lawyer chose to ignore the dismissal because he believed the court would exercise its discretion in favor of not following the Rules of Civil Procedure.
Nadarajah v Lad, 2015 ONSC 4626 (ON Div Ct) https://www.canlii.org/en/on/onscdc/doc/2015/2015onsc4626/2015onsc4626.pdf
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