Case dismissed? The dangers of the new Rule (Administrative dismissals) PowerPoint prepared by L AW PRO

How to use this PowerPoint Law firms are encouraged to use it to train lawyers and staff on the best practices for avoiding Rule 48-related administrative dismissals. There are notes on each slide with additional commentary to help the presenter. For a reasonable sized audience L AW PRO will consider sending a speaker to do this presentation. Contact Dan Pinnington (see below). This PowerPoint was prepared as part of L AW PRO’s Rule 48 Transition Toolkit which contains additional information and resources (practicepro.ca/rule48). For further information on Rule 48 claims and claims prevention contact Dan Pinnington, Vice President Claims Prevention & Stakeholder Relations, L AW PRO, at (416) or or

Agenda Old Rule 48 New Rule 48 Avoiding administrative dismissals Most common causes of claims Rule 48 Transition Toolkit Firm checklist Individual file checklist File progress plan

Old Rule 48 ( ) Action may be dismissed 2 years after Statement of Defence filed Action may be dismissed where Statement of Defence not filed within 180 days of claim Notices sent for status hearings prior to dismissal – opportunity to make it right Lots of people unhappy with old rule –Not practical to deal with tens of thousands of dormant matters –Very expensive for L AW PRO…

Old Rule 48 administrative dismissal claims* YearNumber of Claims Cost (Incurred) $3.5 million $2.6 million *(as of July 1, 2015) $3.7 million

The new Rule Ontario Regulation 170/14 –Sept. 6, 2014 Ontario Gazette Existing Rules (Action not on trial list) and (Action abandoned) revoked New Rule (Dismissal of an action for delay) substituted in their place

The dangers are in the details L AW PRO hopes new rule will reduce claims overall But big changes and hidden nuances create some new claims risks Lawyers and law firm staff need to be familiar with the changes This presentation summarizes the key changes and highlights the dangers

The major changes: Actions will be automatically dismissed for delay if not set down for trial 5 years after commencement Any action struck from trial list, and not restored by second anniversary of being struck, will be dismissed on that date These dismissals happen: –Without notice to parties or their counsel –Unless the court orders otherwise Consent timetable or status hearing

The key dates: New rule effective January 1, 2015 “5 year automatic dismissal rule” applies to actions commenced on or after January 1, 2012 (updated preamble to SOC & NOA) Actions commenced before January 1, 2012, will be dismissed January 1, 2017 Transition provisions impact older actions…

Transition provisions Status hearings scheduled, but not held, before January 1, 2015, will proceed under old Rule Old Rules and status notices received prior to January 1, 2015, cease to have effect on that date –Unless a status hearing has already been scheduled, or the action has already been dismissed

The new dismissal process No notice before dismissal After dismissal, the registrar will serve a Rule dismissal order (Form 48D) Any lawyer served with dismissal order must promptly give a copy to his or her client If you get one of these there is a potential claim –Notify L AW PRO!

Updated preamble to Statement of Claim and Notice of Action TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has not been set down for trial or terminated by any means within five years after the action was commenced unless otherwise ordered by the court.

3 ways to avoid dismissal

Before the deadline: 1. Set the matter down 2. On consent, file timetable & order 3. No consent? Bring a motion

Move the matter along so you can set it down Take timely litigation steps –Obtain evidence early –Save disbursements –Get WIP paid –Keep clients happy Tip: once discoveries are complete, put your mind to setting the matter down

Can’t set down in time? File timetable & order on consent On consent, file timetable and draft order at least 30 days prior to the dismissal deadline Timetable must set out: –The dates by which outstanding steps necessary for set-down will be completed, and –A date by which the action will be set down or restored to the trial list No more than two years after the automatic dismissal deadline for the action

No consent? Bring a motion One party can bring motion for a status hearing At that hearing, the plaintiff must show cause why matter should not be dismissed for delay Court can: –Dismiss the matter –Adjourn the matter –Make a Rule 77 case management order, or –Set deadlines for completion of the steps necessary prior to set-down and a deadline for set down for trial or restoration to the trial list

Uh oh – case dismissed! Notify client and L AW PRO Motion to set aside dismissal - Rule 37.14

L AW PRO increase in deductible for certain administrative dismissal claims If administratively dismissed file cannot be set aside Deductible increases $10,000 Does not apply to certain pro bono work

What are the chances a dismissed case can be restored to life under new Rule? Under old Rule 48, many files less than 5 years old were dismissed Courts will now only see files greater than 5 years old Likely even less leniency Don’t tempt fate: Move your files along

The most common causes of Rule 48 claims

Top 3 Reasons Actions Are Not Set Down In Time 1.The weak and languishing file (damages are minimal and/or there are difficult issues of liability) 2. A junior lawyer is overwhelmed 3. Personal crisis or unexpected hiatus

When all the balls get dropped A personal crisis or unexpected hiatus causes work on all of a lawyer’s files to stop Files are not monitored by staff and are not transferred to new lawyer Triggers a cluster of administrative dismissals Does your firm have systems and processes that would respond?

Other reasons actions are not set down in time Don’t know the law Too busy Seems too big to tackle Unpaid fees Difficult client/client won’t give instructions Difficult opposing counsel

The steps you and your firm can take to lessen the risk of Rule 48 claims

Three key steps 1.Update firm systems and processes 2.Keep tabs on individual files 3.Use file progress plans for each file Rule 48 Transition Toolkit practicepro.ca/Rule48

Updating firm systems and processes Ensure your tickler system is effective Ticklers should be sent to 2+ staff Set ticklers for each litigation step Generate monthly reports of files that have had no activity, especially >90 days Supervise junior lawyers Build a culture of openness Rule 48 Transition Toolkit Firm Checklist

Rule 48 Transition Toolkit Firm Checklist

Keep tabs on individual files Update ticklers for each individual file: –Dismissal date –Steps in litigation –Other important dates Use a file progress plan, and meet with key staff involved in the file every time it’s updated Rule 48 Transition Toolkit Individual File Checklist

Rule 48 Transition Toolkit Individual File Checklist

Keeping track of a file Multiple ways to keep track. A good system: –Makes sure litigation steps proceed quickly –Keeps track of what has been done and what needs to be done, and by whom –Is easily transferable to other lawyers if the need arises Rule 48 Transition Toolkit File Progress Plan

Rule 48 Transition Toolkit File Progress Plan

File progress plan: Header information Name of file: Smith v. Smith File no.: Responsible lawyer(s) & staff: Jill, Tom (A) Last updated (date):July 15, 2015 To be updated next (date):September 15, 2015 Date of loss: February 1, 2015 Dismissal date: February 1, 2020 Theory of liability & strength of case:... Theory of damages:… Estimated quantum: $50,000

Step Date To Be Completed Actual Date Completed WhoNotes Obtain authorizations and directions Investigate claim (order searches, order records, retain experts) Identify all defendants Serve notice letters Issue Statement of Claim File progress plan: Assign tasks

File progress plan: Book the next meeting Smith file: file progress plan update meeting

Your marching orders Learn new Rule 48 Update tickler systems Move your files along!!! Use the Rule 48 Transition Toolkit Contact L AW PRO immediately if you think there might be a claim

Watch for more info: L AW PRO TitlePLUS Home @titlepluscanada L AW PRO L AW PRO staff lawpro.ca titleplus.ca lawpro.ca/excess practicepro.ca

For more information on Rule 48- related claims and risk management contact Dan Pinnington Vice President, Claims Prevention & Stakeholder Relations L AW PRO, Toronto, Ontario (416) or