ARTICLE ● Zoom is here to stay, but robes are back: Ontario Superior Court of Justice Guidelines ● Dale & Lessmann LLP Apr 7, 2022

Zoom is here to stay, but robes are back: Ontario Superior Court of Justice Guidelines 
Apr 7, 2022 by Rachel Frank Dale & Lessmann LLP

The COVID-19 pandemic forced the justice system to adapt and to embrace and facilitate virtual proceedings for hearing matters before the courts. As in-person events return, the Superior Court of Justice has released new guidelines setting out the presumptive method of appearance for different types of proceedings. While the Guidelines to Determine Mode of Proceeding set out the presumptive methods of attendance in various proceedings, these presumptions remain subject to the Court’s discretion and the over-arching principles outlined in the Guidelines.

The Guidelines and the companion Virtual Courtroom Etiquette will come into effect on April 19, 2022.

In general, virtual hearings will continue as the default mode of proceeding for many routine and administrative matters. Some regions, especially the Northwest, Northeast and regions with circuiting judges, will require greater flexibility to continue hearing more cases virtually. Virtual attendance will be the default method of appearance for the following proceedings, unless the Court specifies a different method of attendance:

1. All case conferences;
2. Pre-trial conferences involving only trial management and scheduling issues;
3. Pre-trial conferences directed at settlement or both settlement and trial management;
4. Trial and long motion scheduling court;
5. Contested motions (both short and long) and applications, unless a party requests that it be held in person and the Court agrees or the Court directs that it be held in person;
6. Assessment hearings.

In directing that a contested motion or application be heard in person, the Court will consider the positions of the parties, the complexity of the issues, whether the outcome of the motion or application is dispositive of a material issue in the case, such as in summary judgment motions, whether viva voce evidence will be heard, and any other factor bearing on the administration of justice.

For other proceedings, the default mode of proceeding will be in writing:

1. Motions on consent of both parties, all motions without notice and all motions that are unopposed;
2. Motions for costs;
3. Motions for leave to appeal to the Divisional Court.

The default mode of appearance will be in person for more substantive matters:

1. Examinations for discovery, unless the parties consent to proceeding virtually;
2. Mandatory mediations, unless the parties consent to proceeding virtually;
3. Judge-alone trials, unless all parties consent to virtual trial and the Court approves, with the option of a hybrid proceeding and witness testimony by videoconference at the request of either party;
4. Jury trials, with the option of a hybrid proceeding;
5. Appeals and applications for judicial review in Divisional Court, unless all parties consent to it being heard virtually and the Court agrees or the Court decides that the appeal or application should be conducted virtually.

While the guidelines set out the presumptive method of attendance, the Court retains the discretion to determine how to proceed in each instance. For civil matters, the Court will consider the following overarching principles:

1. Discretion of the Court: taking into account the issues in the proceeding, the length of the hearing, the evidentiary record, the status of the parties (including self-represented litigants), and access to technology.
2. Rule 1.08 of the Rules of Civil Procedure: sets out the procedure for the moving party to specify the proposed method of attendance.
3. Access to justice: including the ability of litigants to access and use the necessary technology for virtual hearings.
4. Self-represented litigants: the circumstances of self-represented litigants, including the need for access to technology and other supports, such as duty counsel and court staff, or the inability to adequately address issues in writing, may favour an in-person mode of proceeding.
5. Importance of in-person hearings: in-person advocacy and interaction will remain essential for more substantive attendances.
6. Hybrid options: where appropriate or necessary, some parts of a proceeding may be conducted virtually and other parts conducted in person.
7. Impediments to a virtual hearing: statutory, security or other impediments in certain matters, particularly civil contempt hearings or matters that deal with sensitive information, as well as personal circumstances, such as disabilities or caregiver responsibilities, may make virtual hearings less suitable.

The Court also released a set of best practices on virtual courtroom etiquette. The same decorum is expected at virtual and in person hearings. Effective April 19, 2022, lawyers attending virtual hearings will be required to be gowned in all proceedings that, if conducted in person, would require gowning.

Chief Justice Morawetz noted that the Court is determined to embrace changes that assist in achieving the goal of accessible and timely justice. As the justice system faces a massive backlog in all areas, it is hoped that the adoption of virtual hearings as the default for routine matters can play a role in reducing avoidable delays while balancing the needs of all participants.

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