One of Canadian law’s oddities is that many judges love to enforce procedural rules in criminal law, but scorn such rules in civil cases. That discrepancy has been greatest on the topic of dismissal for want of prosecution. And the Ontario Court of Appeal has shown the most marked example of that inconsistency. One looked hard to find any Ontario cases dismissing a civil case for non-prosecution.
Many civil decisions said that a hiatus of well over 10 years had no serious effect on the quality of evidence, even in the face of a legislated presumption of prejudice after years. These decisions left the reader gasping. What lay parties and witnesses must think about their duty to recall details 14 years old, is probably not capable of polite description.
One could discuss at length the peculiarities of dismissing criminal prosecutions for failure to get to trial within a fixed length of time. The basic instinct is sound, as the community suffers from delays in criminal justice. But its system of sticks and carrots at times sometimes seems backwards.
However, the intensification of the delay doctrine in criminal law has had one good effect. It has now induced the Ontario Court of Appeal to turn over a new leaf in delayed civil cases, and to apply the Supreme Court of Canada’s criminal-delay reasoning in R. v. Jordan to some of the express Ontario Rules of Court calling for speed.
There is inherent prejudice to a defendant whose land or money is tied up for years, as that Court now strongly affirms. It is despicable for a plaintiff to get possession of the disputed matter, or even to get it away from the defendant, and then leave the lawsuit to wither like the wedding breakfast in Dickens’ Great Expectations. (The Ontario case was about builders’ liens.
See Southwestern Sales Corp. v. Spurr Bros. 2016 ONCA 590, 352 OAC 166.
The Southwestern case in Ontario also knocks on the head a very common flimsy excuse by inactive plaintiffs. Sadly, that excuse was often accepted by sympathetic or credulous judges. The plaintiff’s common “explanation” for 12 years’ delay is “I heard nothing from my lawyer, so I assumed everything was fine. He did not tell me that he was doing nothing.” But the plaintiff must know that there has been no trial; he would have to be a witness at it. He knows he has no judgment or payment yet. And he must know that he has not been getting an interim accounts either. Does he think that the lawyer is doing lots of work, and not billing for it, and everything is fine? For about two years that might be possible, though not a reasonable assumption. After about 5 years, that belief would slip over the border into fantasy.
Besides, the Ontario Court of Appeal now points out that the plaintiff has a duty to supervise its lawyer, especially when the plaintiff is a commercial enterprise, not an uneducated illiterate person living in a remote area.
After all, confidentiality bars anyone else from inquiring into what is said and done twixt lawyer and client. No one else has any power to supervise, watch, or instruct the lawyer. Many older cases said that the client is not responsible for his lawyer. Thus in effect older cases barred any supervision of the lawyer by any power on earth, at least so long as the plaintiff himself was not personally actively complaining. If the client leaves it all to his lawyer, and does not check up on the lawyer, then no one will do anything. The lawyer will become another one-way valve, which sends money to the client, but cannot transmit to the client any disadvantage whatever form what the lawyer does or does not do. The valve may not even transmit danger signals.
Let us hope that this new Ontario Court of Appeal decision has some influence.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
