For sometime now, litigants have largely treated status hearings as an ineffective procedural necessity in the litigation process. The result of these hearings is all too often an aggressive, court-approved litigation timetable that garners about as much respect as the status hearing itself. The recent Ontario Court of Appeal decision in Faris v. Eftimovski however, suggests that we in the defence bar should be taking a good look at how we handle these hearings as they might be an early opportunity to push for the dismissal of a stagnant action.
In effect, Faris v. Eftimovski offers a helpful hand to defence counsel when dealing with actions being managed in a dilatory fashion. It confirms that the onus is squarely on the plaintiff to demonstrate not only that if allowed to proceed the defendant would suffer no non-compensable prejudice, but also that there is an acceptable explanation for the delay in litigating the action. The suggestion from the Court is that Rule 48.14 requires the plaintiff to discharge a positive onus in order to avoid dismissal. The resulting inference is that a dismissal of the action is the presumptive default at the status hearing juncture.
To that end, rather than hastily committing ourselves to aggressive litigation timetables it’s time that we step up to status hearings prepared to put some pressure on plaintiffs to explain their delay. Absent an acceptable explanation, a dismissal pursuant to Faris v. Eftimovski should be sought. If nothing else, this recent Court of Appeal decision should remind us that the status hearing is one more tool in our arsenal against the lackadaisical plaintiff.