Injury Lawyers Since 1984
The amendment of a rule that automatically dismisses an action for delay after two years if it has not made its way onto a trial list, to five years, is more in keeping with the timelines needed to predict an injured person’s lifetime needs, says York Region lawyer Darcy Romaine.
In Humphrey v Screemers Inc, 2015 ONSC 206 (CanLII), Superior Court Master Donald Short writes that Rule 48.14 of the Rules of Civil Procedure has been repealed and replaced with a simpler rule with a longer time frame. As of Jan. 1, the parties now have five years — instead of the previous two-year period — to set an action down for trial.
“We were quite pleased to see Rule 48.14 had been repealed,” Romaine, associate with Boland Howe LLP, tells AdvocateDaily.com. “The courts summarily dismissing an action after two years, unfortunately was too short of a timeline for personal injury litigation. Perhaps it was conceived for commercial litigation or family law litigation, where there’s an event and everything crystallizes at that one moment, but the problem in personal injury litigation is the event – the accident – is just beginning.”
Romaine says in personal injury law, it may take a year or two for an individual to reach a plateau in terms of recovery, “so a case, by the court’s consideration, is already being dismissed when you’re just starting to figure out what the lifetime consequences of the injury are going to be. It’s imprudent to expect many cases to get to court that fast; there is too much uncertainty in terms of the future.”
And the problems are compounded when cases involve children, says Romaine.
“With children, if it’s a brain injury, for example, the lawyer wants to follow the child through his or her developmental milestones. Before the child is out of the structured environment of school you don’t get a great picture of what the child’s behavior will be like once left to his or her own devices. That’s when you really start to see the effects of brain injury behavior. That’s when it is unmasked,” says Romaine.
He goes on to say, “When you’re talking about the lifetime needs of a child, it is imperative to eliminate as much guess work as you can. Administrative expediency must give way to protecting the interest of the child. For us, that was a problem with the two-year timeline.”
“By moving in five years, it’s a much better window and a more realistic expectation that many cases will in fact have matured, and most procedural milestones will have been properly surpassed,” says Romaine. “It’s unfortunately more in keeping with the lifespan of real personal injury claims, not including kids.”
Romaine calls five years a fair time frame, and says ideally, cases would be resolved earlier, but the new rule allows for some leeway.
“The Civil Rules Committee is trying to be gently encourage claims to resolve quickly,” he says, “as they should”. “But there has to be a balance between expediency and having enough time to get it right. The scale should tip in favour of the latter.”