February 2, 2017
In anticipation of the new rule governing administrative dismissals (Rule 48.14), which came into effect on January 1, 2017, Justice Glithero of the Ontario Superior Court of Justice recently set out the applicable procedure in circumstances where an administrative dismissal date falls between an order refusing to restore an action to the trial list and the hearing of the appeal of that order.
In Apa Holdings Inc v Duscio, 2016 ONSC 7814, a construction lien matter involving a claim for $250,000, the plaintiff brought a motion to restore the action to the trial list nearly seven years after it was initially struck. The motion was dismissed on September 8, 2016, and the plaintiff appealed. As the hearing of the appeal was scheduled to take place on February 6, 2017, the plaintiff brought a motion for an extension of time so the action would not be administratively dismissed on January 1, 2017, as prescribed by Rule 48.14 of the Rules of Civil Procedure. The plaintiff argued that the administrative dismissal of the action would render the appeal moot.
The defendant disagreed with the plaintiff’s position, citing subsections 134(1)(a) and (c) of the Courts of Justice Act as providing appellate courts with the necessary jurisdiction to make an order setting aside the administrative dismissal and restoring the action to the trial list should the Court consider it just. To that end, the Ontario Court of Appeal previously made such an order in Carioca’s Import & Expert Inc v Canadian Pacific Railway, 2015 ONCA 592, when it restored the underlying action to the trial list after it had been both struck off the list and administratively dismissed.
Relying on Carioca, Justice Glithero agreed with the defendant’s position in finding that it would be within the Divisional Court’s purview to revive the action at the hearing of the appeal as a result of “the obvious nature of its power to do so” under the CJA.
Rule 48.14 was enacted in response to a significant uptake in recent years in the number and cost of claims made to LawPRO involving administrative dismissals. The new rule mandates that any action not set down for trial within five years after being commenced will be administratively dismissed. Now that the rule is in force, courts will likely be tasked with clarifying its meaning and effect on other procedural aspects under the Rules. Justice Glithero’s decision helps to resolve one such issue, reminding litigants to rest assured that appellate courts continue to possess the necessary authority to overturn administrative dismissal orders when appropriate.