September 1, 2022

By Brian Babcock

Case management has been around for a long time in Ontario, but it has recently gained increased prominence. The Rules of Civil Procedure have even been amended to include a rule which governs case management in Toronto, Ottawa, and Essex County. Although the rule is not technically in force in Thunder Bay or the Northwest Region, case management is increasingly common here, and the rule is a reference point for procedure in this region. However, as with most rules, not all situations were contemplated by the drafters.

THE ISSUE

Rule 77.04 of the Rules of Civil Procedures states that a case conference judge may establish or amend a timetable. A case management judge can also make orders, impose terms and give directions that are necessary to manage a case. The rule does not explicitly say that the orders can include an order dismissing the action for not complying with case management orders. If the judge has that authority, can the judge make the order on their own or does it require a motion from the opposing party?

THE CASE

The Divisional Court appears to answer these questions in Isaac v. Law Society of Ontario. There are some idiosyncrasies of the status of the Divisional Court which make the issue less certain for that court, arising from the fact that the case management rule does not expressly apply to Divisional Court. This means that if your case is in Superior Court, where most civil cases begin, the answer should be more clear, not less clear.

THE LAW

At the risk of spoiling the story, the answer to both questions is “yes”.

Both the Ontario Court of Appeal and the Supreme Court of Canada in other contexts have confirmed that any court, even a statutory court such as the Divisional Court, has the power to control it’s own process and to make any order that is reasonably necessary to perform its intended functions.

On that basis, the court had no difficulty deciding that the case management judge could dismiss the action. Since the judge has power to make scheduling orders and a timetable, that judge must be able to enforce those orders up to and including dismissing the action or appeal for flagrant noncompliance.

The issue of the absence of the formal motion was given more attention.

It is significant that Mr. Isaac with given every opportunity to perfect his appeal and had been cautioned that continued failure to comply with court orders would result in his appeal being dismissed. He was also given an opportunity to explain why his appeal should not be dismissed after he missed the final deadline. Despite several extensions and much time passing, he did nothing to perfect the appeal. He had been given opportunities to explain his delay, which accomplish the same purpose as would have been accomplished by a formal motion. There was no unfairness in the process followed.

Case management is an important addition to the courts’ toolbox. For it to be taken seriously, there must be serious consequences for not complying. Delay or failure to comply with court orders is an ongoing problem in the court system. Parties and lawyers need to be aware that there will be serious consequences for noncompliance.

The Isaac decision makes a lot of sense, and we would expect that it would be applied by case management judges in the Northwest region.

TAKEAWAYS

  • Case management should be taken seriously
  • Case management orders should be taken seriously and complied with where possible
  • Where it is impossible to comply, it is better to be up front about the problems, and bring them to the attention of the case management judge, rather than simply ignore the problems and hope that they will go away
  • As with most things in life, problems tend to get worse not better
  • Few things in litigation are worse than having your proceeding dismissed for noncompliance

HOW WEILERS LAW CAN HELP YOU

Most actions which are case managed are complex. Not all lawyers enjoy complex actions or have their practices organized optimally for complex actions. At Weilers Law, our litigation team thrives on complex issues and complex actions. As a result, we are very comfortable with the case management process. Whether in case management or otherwise, we are always conscious and aware of the importance of timetables and deadlines. We understand how to deal with case management issues respectfully. If you are involved in a complex action, and want legal representation that reflects this proud tradition and progressive approach, then Weilers Law may be the right lawyers for you.