Over Reaching

Oscar Wilde apparently advised, “Never put off till tomorrow what you can possibly do the day after.”

Procrastination is the evil that some say would be encouraged if Rule 48.14 of the Ontario Rules of Procedure were changed to lengthen the two year period after which court machinery will come belching and hissing to life, swiping actions not listed for trial off the conveyor belt into the waiting pail beneath marked “Status Hearings”.

Is this a sensible use of judicial and administrative resources? All those plaintiffs’ lawyers swearing affidavits about how they changed their address and never got the Status Notice, or detailing how they have handled the action properly from the outset, or why the extent of the plaintiff’s injuries can’t be determined within two years. Think of all those defendants’ lawyers rubbing their hands and not consenting to set aside administrative dismissals, and all those professional negligence claims triggered and litigated.

And what’s in it for the government? Can’t plaintiffs hound their lawyers into action? Can’t defendants move for failure to prosecute? When a dismissal sticks, how is that consistent with the goals of justice?

See the excellent letter from OBA President Paul Sweeny here raising these issues with the AG in June this year.

Let your voice be heard.

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Comments

  1. John,

    I assume your question is somewhat rhetorical, since you know all the things I’m about to write. Nonetheless ….

    As you know, any defence lawyer who contests the motion to restore, the fist time around, will probably – almost certainty in my experience in the region I practice in – put the client on the wrong end of a costs order. In the early days of Rule 57, maybe even expose the lawyer to coss, personally. But now? So long as the lawyer says “those were my instructions?”

    There’s nothing a plaintiff can do to hound the plaintiff’s lawyer short of a complaint to the PtB or changing lawyers.

    Any plaintiff’s lawyer who wants to get the case moving can do so very easily – whether or not there’s money in the retainer or a pot at the end of the rainbow. That’s true about the defence side, too, though there may be nothing in the pot at the end of the rainbow if the lawyer didn’t payment secured in advance. (Or the client isn’t an institutional litigant and a regular client of the lawyer. Even then, sometimes things go bad.)

    Motions to dismiss for want of prosection, in my experience, invariably fail the first time around absent prejudice going to the merits.

    Why should the defendant have to incur the expense of forcing a plaintiff to meet the plaintiff’s obligations?

    More generally, why should a defendant be required to incur any expense the defendant does not have to? The defendant didn’t instigate the law suit. Lawyers don’t work for bread crumbs or cake.

    In most cases, there’s no onus on the defendant to show the alleged loss wasn’t the defendant’s fault, breach of contract etc. etc.

    Rule 48 is, I think, a rule whose genesis (in its current form) is the conceit that created mandatory case management.

    Cheers,