Can A Wrongful Dismissal Claim Be Dismissed For Delay?
As an employee, starting a lawsuit is usually the last resort to claim damages for wrongful dismissal. As the party beginning the lawsuit, it is usually the employee’s responsibility to make sure that their case is moving forward towards trial. However, what happens when an employee does not take any steps in moving their lawsuit forward? Can a wrongful dismissal claim be dismissed for delay? In fact, an employer may request to have the lawsuit dismissed for delay. The courts must then consider the circumstances of the delay to determine whether to dismiss the case for delay.
Dismissal for Delay
In general, a case can be dismissed for delay if an action is not scheduled for trial within five years of commencing the lawsuit, or if the case was set down for trial but is subsequently struck off the trial list and has not been returned to the trial list within two years. Setting a case for trial means that the employee, or plaintiff, indicates that they completed the discovery process and that they are ready to proceed to trial.
The process for setting a case for trial may be lengthy and is dependent on the defendant’s responsiveness and the court’s processes. A plaintiff may not be able to set a case for trial within five years due to extensive delays on the defendant’s part. Similarly, the court may be delayed in setting down the case for trial due to backlog. In these situations, it is unlikely that a court would dismiss a case for delay due to circumstances that are of no fault to the plaintiff. A plaintiff may also justify extending the deadline to set the case down for trial if the delay was due to their lawyer’s inaction and if the lawyer’s inaction was not due to the plaintiff’s inaction.
COVID-19 and Suspensions of Dismissals for Delay
During the COVID-19 pandemic, all dismissals for delay were placed on hold from March 16 until September 13, 2020. After September 13, 2020, the Superior Court of Justice provided directions to refrain from dismissing cases for delay. As of May 13, 2024, the Superior Court of Justice is resuming dismissals for delay.
Due to the court directions, it is not enough for defendants to ask the court to dismiss the case due to delays brought on by the COVID-19 pandemic. The delays must be significant to the extent that further delays would prejudice the defendant in order to dismiss the case for delay. To best prevent a case from being dismissed for delay, it is important for plaintiffs to stay on top of their cases and to move their cases forward towards trial.
How We Help
At Whitten & Lublin, we are happy to provide guidance on the steps necessary to move your case towards trial if necessary. If you are looking for employment lawyers and would like more information on what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640 2667 today.
Author – Abby Leung