Domenic Bellacicco’s phone is ringing off the hook these days thanks to a great “practice tip” article he wrote for latest issue of LAWPRO Magazine. Domenic is a Claims Counsel in the New Claims Unit at LAWPRO. and his article addresses an area we all too frequently see claims in these days: administrative dismissals.
Read the full Administrative Dismissal: Take It Seriously And Ask For (Our) Help article here.
I spoke with colleagues at two law societies (one in the West and one in the East) who said this was also a big issue (with local variations) in their respective provinces, so I thought a post on SLAW would be a good way to get an important claims prevention pointer out to lawyers right across the country.
Domenic’s article starts out with a scenario that will, unfortunately, sound very familiar to many lawyers. A Friday afternoon phone call from counsel on the other side of a matter that has sat too long on the corner of your desk. It has been difficult to obtain instructions from the client, and you have a nagging feeling that you have put the matter off for too long. The call from counsel on the other side informs you that the registrar dismissed the action for delay about six months ago and he is closing his file. When you review the file, you find buried with some client documents the dismissal order which never came to your attention. You are not even sure if you received the status notice advising of the pending dismissal. You don’t see it in the file. Your first thought is that a registrar’s dismissal order is easy to set aside. Wrong!
LAWPRO sees this scenario (or a similar version) on a weekly basis. Many lawyers are unfamiliar with the case law and think registrars' dismissal orders are routinely set aside. They do not call LAWPRO. Instead, they bring a motion but are not successful in restoring the action. The motion materials are poorly drafted and the affidavit lacks crucial details. See Domenic’s article for a summary of the requirements under the Ontario rules and case law. Of course, other provinces will have their own requirements.
Further, by being late in reporting the matter to your malpractice insurer, you are not only jeopardizing your coverage but also endangering hopes of an appeal because this is likely not a case where you can introduce fresh evidence on appeal. Typically, all relevant information was available prior to the motion.
When you realize that an action has been dismissed for delay, call your insurer immediately. Don’t bring the motion without telling your insurer first, and don’t advise it of the situation on the eve of motion. Your insurer can help by reviewing your motion material. In some cases, a consent to set aside the order may be available. In some circumstances, your insurer may agree that your firm can proceed on its own with experienced counsel handling the motion. In most cases, it is necessary for your insurer to retain counsel for you to prepare the motion record and argue the motion. LAWPRO has been successful when it has had the time to properly respond. Remember, your insurer is there to help.
Read the full Administrative Dismissal: Take It Seriously And Ask For (Our) Help article here.
Good practical advice for dealing with administrative dismissals – and an important broader lesson for all lawyers: talk to your malpractice insurer to get objective and expert advice if you think you have a real or potential malpractice claim.
