Law Times

Page 12 June 13, 2016 • Law Times www.lawtimesnews.com Comprehensive checks underway Automatic dismissal rules coming MICHAEL MCKIERNAN For Law Times T he file cabinets at personal injury law boutiques across the province will get a workout this summer and fall as firms gear up for new automatic dismissal rules that come into force on Jan. 1, 2017. Amendments to Rule 48 of the Ontario Rules of Civil Pro- cedure, enacted in 2015, mean that all claims commenced be- fore January 2012 that have not made their way to the trial list by the start of 2017 will be dis- missed without notice. Under the old rule, parties had just two years to get their ac- tions on the trial list before the court's registrar sent out a notice of intent to dismiss the claim for abandonment. However, the new rule scrapped the warning in exchange for a longer dead- line, making dismissal automat- ic after five years. "As a practical matter, I think lawyers ought to be go- ing through their cabinets, and diarizing the set-down dates for every single client that is not on the trial list," says Steve Rastin, a former president of the Ontario Trial Lawyers' Association. Gary Will, the Oakville, Ont.- based managing partner of per- sonal injury firm Will Davidson LLP, says comprehensive checks are also underway at his firm. "It's one more thing to keep track of," he says. "A lot of people probably think they'll have all their cases tried within five years, but it's amazing how quickly five years go by. Sometimes, cases can drag their way through the process, so you definitely have to put your mind to it, and send out the message to everyone in the firm that they have to take a look at all files." According to Rastin, the principal at Rastin and Asso- ciates P.C. in Barrie, Ont., the changes present an opportu- nity for personal injury firms to revamp their tickler systems, and gear them towards advanc- ing actions, rather than simply marking ultimate deadlines. He says the recent reduction to prejudgment interest rates for non-pecuniary losses from five per cent to less than one per cent, as well as the 70-per-cent cap on income loss claims, means per- sonal injury lawyers have more incentive than ever to keep cases moving forward without delay. "When I'm asked for an in- dulgence by opposing counsel, I tell them that I'm not prepared to delay for months while they get their ducks in a row, while my client loses part of their eco- nomic loss every day," Rastin says. "In terms of serving the public, we are certainly doing them no favours when we allow cases to take six, seven, eight, or nine years to get to trial. It's not in the interest of the public, the courts, or the profession." At Rastin's firm, each new file goes through a series of deadlines as they wend their way through the process. First of all, medical and economic documentation must be in place within 60 to 90 days so that the firm can evaluate an injured party's claim. For pos- itive evaluations, claims should be issued within 60 days. After pleadings have closed, Rastin gives himself three to six months to book discoveries, and nine months to get them done. Once discoveries are complete, Rastin aims to get the case on the trial list within 60 days. "It doesn't mean you can meet the goal every time," Rastin says. "But with those systems in place, we have cases going to trial in 2016 that are 2013 accidents." At the recent Oatley McLeish Guide to Motor Vehicle Litiga- tion conference, Domenic Bel- lacicco, manager of the new claims unit at LawPRO, said that in cases where a file does man- age to fall between the cracks, judges are more likely to look kindly on firms that can show a "proactive" approach to avoiding administrative dismissals. "Do more than just diarize the ultimate limitation date. The key is to also diarize the steps for the progress of the file," Bellacic- co told an audience of lawyers at the April 1 event, sponsored by the Law Society of Upper Can- ada. "That will help you in case there is a slip, so you won't be faced with that awkward situa- tion of explaining to a judge why you haven't been able to move the case along in five years." Bellacicco explained that administrative dismissals have cost LawPRO $10 million over the last four years, forming a large chunk of the insurer's total claims, but emphasized that they are "preventable." If the trial list is an unrealistic goal before the 2017 deadline, the parties to an action can avoid dismissal by fil- ing a consent timetable or bring- ing a motion for a status hearing. "We're trying to avoid this tidal wave of claims in 2017, so we're stressing to plaintiff law- yers to look at all of the files in the cabinet, and if you need an extension, don't wait until the last minute," Bellacicco said. If lawyers do discover an ad- ministrative dismissal involv- ing a client, Bellacicco's advice is to let LawPRO know as soon as possible so work can begin on restoring the action. According to Rastin, the changes shouldn't be a big issue for most firms with a robust file management and tickler system. "Having said that, I think for a number of practices, they are in for a very rude awakening," he says. "I've heard of lawyers, par- ticularly in the GTA, running 2,000, 3,000, or 4,000 files with only a law clerk and a paralegal to assist them." 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