A number of years ago the drafters of the Rules of Civil Procedure for Ontario (a committee of lawyers, judges and interested parties) decided to experiment with a new Rule 48.15.

The essence of the Rule was that once the statement of claim was issued, the clock started ticking for the parties and counsel. If the action was not listed for trial in 2 years, the action was automatically dismissed by the Court.

There was also a mechanism to extend time but the practical result was that a lot of actions were dismissed even when there was no intention to abandon the action. This in turn led to many claims against lawyers, some of which were successful. A whole new body of case law developed as to what was considered excusable delay.

The experiment has failed.

The old Rule has now been struck out and replaced with a new Rule with a 5-year deadline. Don’t worry, the problem of slow lawsuits and lawyers will not be going away.

In Estate matters, most litigation continues to be commenced by application, rather than by statement of claim. Therefore old new Rule 48.15 and new Rule 48.15 should make no difference because delay under an application has always been allowed.

But I think this may be changing as statements of claim will become the new choice of originating process for many estate matters (when allowed by the Rules). So for new estate litigation commenced by statement of claim, 5 years is the new normal and I think eventually it will be the new normal for applications also.

The pros and cons of how to commence your estate litigation (application vs. statement of claim) is something that you should discuss with your counsel at the outset, as well as how long will all this take?

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