Estate Litigation Blog

Applications and Actions: dismissal for delay


by Robin Spurr, Published: September 19, 2015

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In an effort to streamline the litigation process and free up much needed court resources, the Rules of Civil Procedure were amended as of January 1, 2015 to provide that the Registrar shall dismiss an action if it has not been set down for trial within 5 years.

This dismissal for delay provision is appealing in that it forces litigants to bring matters before the court in a timely manner and not to delay the proceedings unnecessarily.  However, the recent case of Michie v. Turalinski demonstrates how this rule is, unfortunately, not universally applicable.

In this case before Hon. Justice Mesbur in Toronto, the daughter of the deceased brought an application to compel the appointed estate trustee without a will, the applicant’s brother, to produce a statement of assets of the estate.  Despite the application having been brought in 2011 and the existence of an Order Giving Directions setting out a timetable for the application, by August 2015, no cross-examinations had taken place, let alone a hearing date set.

The respondent brought a motion to dismiss the application for delay based on the new Rules.  Unfortunately, the Court found against the respondent and did not order the application be dismissed.

The Court gave two reasons.  The first was that the relevant rule, 24.01 of the Rules of Civil Procedure, sets out the circumstances in which the Court may dismiss an action for delay applied only to actions and not to applications.  Additionally, the Court found that even if Rule 24.01 did apply, the new rule 48.14 which provides that the Registrar shall dismiss an action if it has not been set down for trial within 5 years, was not met in this case as it had only been 4 years.

This case leaves many questions unanswered.  Particularly, how does one effect the dismissal of an application in the event one or both parties refuse to cooperate to move the application along.  Litigation is a time-consuming process as it is and there should be limits imposed on the time a party can take to bring an application before the Court for a hearing in the same manner an action can be dismissed for delay.

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