ARTICLE ● COVID-19 and ONTARIO Superior Court of Justice: What You Need to Know ● DAVIES WARD PHILLIPS & VINEBERG Jun 15, 2021
Across the globe, courts have rapidly adapted their practices and procedures in response to the COVID-19 pandemic. As waves of infections have spread throughout Canada, its courts have fluctuated between resuming activities and easing restrictions, then scaling back services and reintroducing restrictions. In most jurisdictions, hearings that were adjourned have now been resumed; limitation periods that were previously suspended have restarted; and procedures and timelines for filings have continued on an amended basis. However, the courts have modified their normal operations substantially, and continue to update and adjust them on an ongoing basis. We have summarized below the need-to-know information about civil proceedings in a number of courts and tribunals in Ontario ....
Filings and Procedural Deadlines
Ontario Superior Court of Justice
- In-person hearings. In-person matters are not being held, with the exception of only the most serious child protection matters, urgent family matters and critical criminal matters, where other options are absolutely unavailable.
- The Court will remain open during the provincial lockdown, but all Superior Court of Justice courtrooms will be subject to a 10-person capacity limit. Litigants are asked to arrive at least 30 minutes early due to extra screening requirements.
- Proceedings that are in progress may continue subject to the discretion of the trial judge.
- As of January 1, 2021, a party seeking a hearing or other step in a proceeding that permits or requires the parties to attend must propose whether the hearing should be heard (1) in person; (2) by telephone conference; or (3) by video conference.
- Parties may object to the proposed method of hearing by delivering a notice of objection (Form 1A). If a party delivers such an objection, the Court will determine the method of hearing at a case conference.
- Unreasonable objections to proceeding by telephone or video conference may be considered in awarding costs.
- Remote hearings. The Court is currently deferring as many matters as possible, including remote hearings. Priority will be given to the most serious child protection matters, urgent family matters, critical criminal matters, and urgent commercial or economic matters where there are employment or economic impacts.
- The Court has requested that parties abide by its Best Practices and Etiquette for Remote Hearings.
- As of January 1, 2021, all case conferences will be held by telephone conference unless the court specifies otherwise.
- Other matters that may be heard remotely include the following:
- unopposed motions and applications;
- opposed short motions and applications;
- long motions and applications;
- requests for chambers appointments and case conferences;
- class action case management conferences as well as pre-certification, certification and post-certification motions.
- CaseLines. CaseLines will be used in Toronto civil cases starting the week of September 21, 2020. Parties will be notified by email that CaseLines will be used in their hearings. The Court has announced that it expects all judicial regions in Ontario will be using CaseLines by the end of 2021.
- Jury. Jury selection and jury trials may resume in July, August, or September 2021, depending on the public health situation both across the province and in each region, and subject to regional direction from the Regional Senior Justice.
- Filings. The Court will accept filings via email at the specific email addresses indicated in a region’s Notice to the Profession only for urgent matters or those identified in a region’s Notice to the Profession. Any materials filed via email must then be filed in paper format, with the requisite filing fee, at the court counter when regular court operations resume.
- Parties should file Claims or Statements of Claims through the Civil Claims Online Portal. For matters that are not “urgent” or have not been identified to be dealt with in a region’s Notice to the Profession, counsel and parties are discouraged from physically attending courthouses to file documents in person.
- Effective January 11, 2021, documents submitted electronically to the Court must follow a standard document naming protocol.
- Time periods for steps in civil proceedings as established by statute, regulation, rule, bylaw or order of the Government of Ontario were suspended between March 16 and July 16, 2020.
- The Court has also relaxed procedures related to commissioning affidavits. Where it is not possible for a commissioner to administer an oath in the presence of a deponent, the Court will accept affidavits commissioned by video. As of January 1, 2021, remotely commissioned affidavits are generally acceptable in Ontario. If it is not possible to commission an affidavit by video, an unsworn affidavit may be delivered to the Court, but the deponent must be able to participate in any telephone or videoconference hearing to swear or affirm the affidavit.
- More generally, the Court has indicated that it will relieve compliance with procedural rules, regulations and statutes as necessary to manage matters before it during the emergency.
Ontario Superior Court of Justice – Commercial List
- Hearings. All matters are proceeding virtually. Unlike other Superior Court matters, Commercial List matters are not being deferred. Unless the Commercial List Office advises parties otherwise, matters scheduled on the Commercial List are generally proceeding as planned.
- The procedures set out in the Notice announced on March 16, 2020, remain in place. The Commercial List is remotely hearing urgent matters, as well as select motions and applications, case management conferences, pre-trial conferences and judicial settlement conferences.
- CaseLines. Upon receiving an email invitation from CaseLines, parties will upload documents into the CaseLines document sharing platform in accordance with the Supplementary Notice to the Profession and Litigants in Civil and Family Matters Including Electronic Filings and Document Sharing (CaseLines Pilot) and rule 4.05.3 of the Rules of Civil Procedure.
Ontario Superior Court of Justice – Divisional Court
- Hearings. On February 18, 2021, the Divisional Court issued a Notice to the Profession replacing its June 29, 2020 Notice to the Profession. The Court is hearing all matters remotely by teleconference or videoconference.
- CaseLines. CaseLines will be used in Divisional Court hearings starting in October 2020. Parties will be notified by email that CaseLines will be used in their hearings.
- Filings. All materials must be filed via email. Electronic documents are required for all hearings, even if parties have previously filed paper documents. Paper copies of all documents filed electronically will be required once ordinary court operations resume.
- The Court’s February 18 Notice to the Profession details submission guidelines, naming conventions and deadlines for all materials.
Ontario Court of Appeal
- Hearings. As of November 16, 2020, the Court of Appeal will no longer be conducting in-person appeals until further notice. All appeals will be conducted remotely during this time.
- The Court has advised that in July and August 2021, it will only hear appeals on grounds of urgency.
- Effective July 16, 2020, and subject to certain exceptions, the times prescribed to take any step in a civil proceeding were reinstated.
- Filings. All documents that are required for the hearing of any matter must be filed electronically. If hardcopy materials have already been filed, parties must file electronic copies as set out in the Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic dated March 15, 2021. Among other things, the documents containing text must be filed in text-searchable PDF and must be filed electronically according to the Guidelines for Filing Electronic Documents at the Court of Appeal for Ontario.
- Affidavits. In the event that an affidavit of service cannot be commissioned due to COVID-19, the affidavit must still be completed, signed and e-filed, accompanied by an explanation as to why the acknowledgment could not be obtained.