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Small Claims Court (Ontario) Law
(01 January 2015)

Chapter 10 - Default by Plaintiff ("Abandonment")

  1. Overview
  2. Dismissal Where Action Undefended
    (a) Overview
    (b) Normal Rules
    (c) Dismissal Where Action Undefended: Transitional Rules
  3. Dismissal Where Action Defended
    (a) Normal Rule
    (b) Dismissal Where Action Defended: Transition Rules
  4. Service of Dismissal Orders
  5. Default Proceedings on Non-Attendence of a Party at Trial
  6. Reversing Dismissal for Abandonment
________________________________________

1. Overview

In amendments effective 01 July 2006 (Reg 78/06) the Small Claims Court rules adopted new provisions [R11.1 "Dismissal by Clerk"] regarding the failure of a plaintiff to prosecute the action promptly ("abandonment"). These are analogous to traditional civil procedure "default" rules used for years respecting non-responsive defendants, except of course they typically result in the complete dismissal of the action. As they are new procedures it is yet to be fully seen how they will function or be interpreted by the court.

These provisions do not require any positive action by a party to be activated (such as a request of the court), just the specified inactivity by the plaintiff and the passage of time. There is however a 'notice of pending dismissal' (author's term) given before the action is actually dismissed.
Note 2:
R11.1 is silent as to what positive action a plaintiff must take after they receive a 'notice of pending dismissal' in order to avoid the dismissal. Logically it would be any action by the plaintiff which removes any of the below-listed preconditions to dismissal, such as noting the defendant in default in an undefended action, or setting the matter down for trial in a defended action.
Of course, an action may not be dismissed under these rules if:
  • the action has otherwise been disposed of by order [R11.1.01(1)3; R11.1.01(2)3];

  • a "Terms of Settlement" form, signed by all the parties, has been filed with the court [R11.1.01(5)] (see Ch.12 "Settlement");

    It is unclear whether the filing of other forms of settlement documentation such as 'Minutes of Settlement', or accepted offers to settle, will have this effect as well.

  • the court orders otherwise [R11.1.01(1); R11.1.01(2)].
In Bohumil Janicek v OC Transpo, (Ont Div Ct, 2011) the court sets out the principles to be applied when dismissing an action for delay of the plaintiff in advancing it:
[9] The parties both cite the correct test on a motion to dismiss an action for delay, as follows:
The principle to be applied on a motion to dismiss for delay is that the action should not be dismissed unless: (1) the default is intentional and contumelious; or (2) the Plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible. It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of limitation period gives rise to a presumption of prej udice. Where there is a presumption of prejudice, the Defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the Plaintiff rebuts the presumption. The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the law suit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of th e events. If the presumption is rebutted, then the ac tion may still be dismissed if the Defendant leads convincing evidence of actual prejudice.?: Armstrong v. McCall et al 2006 CanLII 17248 (ON CA), (2006), 213 O.A.C. 229 (C.A.) at paragraph 11, citing paragraph 4 in Woodheath Development Ltd. v. Goldman 2001 CanLII 28019 (ON SC), (2001), 56 O.R. (3d) 658.

2. Dismissal Where Action Undefended

(a) Overview

Of course, where an action is undefended, the traditional defendant default rules (discussed in Ch.9) may be triggered by the plaintiff. The rules discussed here cover dismissal of the action AGAINST the plaintiff for failure to press their rights, or "abandonment".

(b) Normal Rules

Where an action is undefended (ie. no defences at all are filed), and if ALL of the following conditions are met, the clerk SHALL dismiss an action as abandoned [R11.1.01(1)]:
  • it has been 180 days since the claim was issued, or since any order extending the time for service was made (see Ch.8, s.3 "Pleadings: Claim");

  • the action has not been set down for trial (see Ch.14, s.2 "Trial: Scheduling Trial");

  • the clerk has given 45 days notice to the plaintiff that the action is going to be dismissed as abandoned.
(c) Dismissal Where Action Undefended: Transitional Rules

Where an undefended action was commenced (ie. issued) prior to 01 July 2006, the transitional rules that apply vary depending on whether the plaintiff has been active since that time or not.

Where the plaintiff HAS taken a "step in the action" since 01 July 2006, the above rule (180 days of inactivity) applies, except that time starts to count for the purposes of determining the period of inactivity at the date that the "step in the action" occured (NOT at the date the Claim was issued or an order extending time for service was made)[R11.1.01(3)]. Otherwise, all the other conditions of dismissal mentioned in (b) above apply.
Note 3:
This new rule is silent as to what constitutes a "step in the action" so as to determine which of the above transition rules applies. Presumably the term will be interpreted to mean any substantial positive step by the plaintiff evidencing a commitment to the action, and certainly would include the plaintiff noting a defendent in default or setting the matter down for trial.
However, where the plaintiff HAS NOT taken any "steps in the action" since 01 July 2006, the clerk SHALL dismiss the action if ALL of the following apply [R11.1.01(4)(a)]:
  • more than two years have passed since the date the claim was (actually) issued;

  • no request to note any defendants in default has been made (see Ch.9, s.2 "Default by Defendant: Noting in Default", above);

  • the action has not been set down for trial (see Ch.13, s.2 "Trial: Scheduling Trial");

  • the clerk has given 45 days notice to the plaintiff that the action is going to be dismissed as abandoned (see Note 2, above).

3. Dismissal Where Action Defended

(a) Normal Rule

If the action is defended, and if ALL of the following conditions are met, the clerk SHALL dismiss an action as abandoned [R11.1.01(2)]:
  • it has been 150 days since the first defence was filed;

  • all required settlement conferences have been held (see Ch.11, s.3: "Pre-Trial Proceedings: Settlement Conferences");

  • the action has not been set down for trial (see Ch.14, s.2 "Trial: Scheduling Trial");

  • the clerk has given 45 days notice to all parties that the action is going to be dismissed as abandoned.
Of course, a "defended" action may not be dismissed under these rules if the defence contains an "admission of liability ... and a proposal of terms of payment" (see Ch.8, s.4 "Pleadings: Defence: Admission of Liability and Proposal for Payment") [R11.1.01(6)].

(b) Dismissal Where Action Defended: Transition Rules

Where a defended action was commenced (ie. issued) prior to 01 July 2006, the transitional rules that apply vary depending on whether the plaintiff has been active since that time or not.

Where the plaintiff HAS taken a "step in the action" [see Note 3, above] since 01 July 2006, the above rule (150 since the Defence was filed) applies, except that time starts to count for the purposes of determining the period of inactivity at the date that the "step in the action" occured (NOT at the date when the Defence was actually filed) [R11.1.01(3)]. Otherwise, all the other conditions of dismissal mentioned in (a) above apply.

However, where the plaintiff HAS NOT taken any "steps in the action" since 01 July 2006, the clerk SHALL dismiss the action if ALL of the following apply [R11.1.01(4)(b)]:
  • more than two years have passed since the first defence was filed;

  • the action has not been set down for trial (see Ch.13, s.2 "Trial: Scheduling Trial");

  • the clerk has given 45 days notice to all parties that the action is going to be dismissed as abandoned (see Note 2, above).
Note 5:
This new rule is silent as to what constitutes a "step in the action" so as to determine which of the above transition rules applies. Presumably the term will be interpreted to mean any substantial positive step by the plaintiff evidencing a commitment to the action, and certainly to mean the plaintiff's action to set the matter down for trial.
Of course, a "defended" action may not be dismissed under these rules if the defence contains an "admission of liability ... and a proposal of terms of payment" (see Ch.8, s.4 "Pleadings: Defence: Admission of Liability and Proposal for Payment") [R11.1.01(6)].


4. Service of Dismissal Orders

Any clerk's order of dismissal in an undefended action shall be served by the clerk on the plaintiff, and in a defended action on all parties [R11.1.01(7)].


5. Default Proceedings on Non-Attendence of a Party at Trial

There are similar default procedures in place where a plaintiff, a defendant, or both fail to attend at a trial. As might be expected they are similar in nature to pre-trial default procedures and also include dismissal of a Claim where a plaintiff fails to attend.

These procedures are covered in detail in the Ch.14: "Trial".


6. Reversing Dismissal for Abandonment

While the Rules do not provide a full procedure for reversing a dismissal for abandonment, they do expressly provide for "restoring" an action to the trial list if all parties consent [R11.2.01(iv)] (see Ch.11, s.12 "Motions and Procedural Changes: Procedural Changes on Consent").

Where the other parties do not consent there is no express mention in the Rules of a right to seek this relief by way of motion, so parties may have to make a motion seeking the court's exercise of its broad "interests of justice" discretion under R2.02. (see Ch.1, s.4: "Overview: Judges").
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