June 08, 2020
The situation regarding COVID-19 is changing rapidly, this post is current as of June 6, 2020.
All of our Courts and tribunals in Ontario are taking precautions to slow the spread of COVID-19 by taking exceptional measures to suspend regular services and deadlines. The situation has evolved over the last several weeks.
Superior Court of Justice (SCJ)
The SCJ has suspended all regular operations. As of Tuesday March 17, 2020, all criminal, family and civil matters, including teleconferences, have been adjourned, that is, not proceeding on the scheduled date until further notice. On May 5, 2020, the SCJ announced that it will not resume in-person hearings of other matters until July 6, 2020, at the earliest. It will, however, continue to hear matters virtually, and expects to shortly further expand the scope of matters that will be heard virtually.
The SCJ has been hearing urgent matters and has created a special procedure for assessing requests for urgent matters. As of April 6, 2020, the SCJ began to hear additional criminal, civil and family matters. In the Notice to the Profession dated April 2, 2020, Chief Justice Morawetz said: “[T]he Court recognizes it has a constitutional responsibility to ensure access to justice remains available. To promote access to justice, to minimize growing caseloads, and to maintain the effective administration of justice in Ontario, it is incumbent that the Court expand its operations beyond urgent matters.”
As of mid-May, the SCJ expanded the list of matters in Toronto to include:
To facilitate the operation of the SCJ during this time:
For civil matters, the SCJ will be creating a special Return to Operations (RO) Scheduling Court for any matters for which the parties cannot agree to a new hearing date. Parties and counsel are expected to cooperate in rescheduling matters.
Starting on April 6, the Divisional Court began scheduling hearings of non-urgent matters and will be conducting remote hearings for such matters.
To read more, visit the SCJ website: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/#B_SUSPENSION_OF_IN-COURT_HEARINGS_AND_JURY_TRIALS and https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-to/#C_Civil_Matters
Toronto Commercial and Estate Lists
The Commercial List has issued a document that provides guidance on Commercial List practice during the suspension of regular operations. The judges of the Commercial List will continue to hear and decide urgent and time sensitive matters by teleconference during the COVID-19 pandemic. The Court will also hear appropriate time sensitive matters in writing and encourages the use of this process in appropriate cases. The Commercial List scheduling office will continue to operate during the suspension of regular operations.
Effective April 6, 2020, the Toronto Commercial and Estate List judges will hear the following matters:
All contested matters will be heard by teleconference or ZOOM and hearings cannot exceed 4 hours.
For the Commercial List, see: https://www.ontariocourts.ca/scj/changes-to-commercial-list-operations-in-light-of-covid-19/ and https://www.ontariocourts.ca/scj/notice-to-profession-to/
Class Action Matters
Effective April 6, 2020, the following Toronto class action matters may be heard:
Suspension of Ontario Limitation Periods and Deadlines
On March 20, 2020, the Government of Ontario filed an Order made under the Emergency Management and Civil Protection Act (the “March Order”) that suspends limitation periods and deadlines under provincial statutes and regulations. The suspension is retroactive to Monday March 16, 2020 and continues for the duration of the emergency. On June 6, 2020, the Government of Ontario announced that it is extending the suspension of limitation periods and time periods in proceedings until September 11, 2020.
The first part of the March Order suspends “any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period.” A limitation period is the deadline by which a proceeding must be commenced. For example, though there are exceptions, the basic limitation period under section 4 of the Limitations Act, 2002, provides that a proceeding cannot be commenced more than two years after a claim was discovered. By suspending limitation periods, the Order creates a period of time in which limitation periods do not run thereby extending all limitation periods by the length of time in which the Order remains in place.
The second part of the March Order suspends deadlines imposed by “any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceedings in Ontario, including any intended proceeding.” With the suspension, the time in which the Order remains in place will not count when determining such deadlines.
The suspension of deadlines under the second part of the Order is subject to the discretion of the Court. The Court needs this discretion to ensure that any deadlines set in urgent, time sensitive or other matters that are heard during the suspension of regular Court services will continue to apply.
However, as of April 16, 2020, the March Order was amended to exclude the Construction Act. More specifically, the suspensions under the Order do not apply to limitation periods or periods of time within which any step must be taken in a proceeding, including an intended proceeding, that are established under the Construction Act or any regulations made under that Act.
For a copy of the Order see: https://www.ontario.ca/laws/regulation/200073 and for the most recent announcement see: https://news.ontario.ca/opo/en/2020/06/ontario-extends-emergency-orders-to-support-its-reopening-efforts.html
Residential Evictions Suspended in Ontario
On Thursday, March 19, 2020, Chief Justice Morawetz granted an Order suspending evictions of residents from their homes during the COVID-19 pandemic. More specifically, during the suspension of regular Court operations, the eviction of residents from their homes, pursuant to eviction orders issued by the Landlord and Tenant Board or writs of possession, are suspended. The Court retains the discretion to enforce an eviction, but only if the party seeking to enforce the eviction can obtain leave pursuant to the Court’s procedures for urgent motions.
This Order applies only to residential evictions and not to commercial properties.
For a copy of the Order see: https://www.ontarioCourts.ca/scj/chief-justice-Court-order-susp-resid-evict/
Though the Law Society of Ontario continues to recommend that lawyers who are acting as commissioners to be in the physical presence of the deponent to commission documents, as a result of COVID-19, until further notice:
For more information see: https://lso.ca/news-events/news/corporate-statement-re-covid-19#during-covid-19-does-the-law-society-s-interpretation-permitting-virtual-commissioning-under-the-co-5
Federal Court of Canada (FCC)
The FCC has issued a further Practice Direction and Order on May 29, 2020, that extends the previously announced Suspension Period until Monday, June 15, 2020.
To enable some court services to continue during the Suspension Period, the FCC has:
To provide parties and their legal counsel with an opportunity to prepare for hearings after the expiry of the Suspension Period:
The Federal Court had previously cancelled all General Sittings. All trials and hearings, including hearings by way of teleconference, scheduled during the Suspension Period continue to be adjourned sine die, that is, rescheduled to dates that are to be determined in the future. The FCC will work with parties to reschedule these matters.
Urgent matters will continue to be heard. There is also an exception for matters that need to proceed as previously scheduled for exceptional reasons. The Court will determine what constitutes “urgent” and “exceptional” on a case-by-case basis and all such proceedings will be held by telephone or videoconference. In addition, where all parties consent, the parties may request that a matter proceed by telephone or videoconference.
The running of all timelines under Orders and Directions of the Court made prior to March 18, 2020, as well as under the Federal Courts Rules, subsection 18.1(2) of the Federal Courts Act and paragraph 72(2)(c) of the Immigration and Refugee Protection Act, are suspended during the Suspension Period. Statutory filing deadlines continue to apply, but parties who are unable to meet deadlines will be able to request extensions of time after the Suspension Period.
Parties are required to file documents electronically using the Court’s E-filing portal during the Suspension Period or, in exceptional circumstances, by email. To file confidential documents, parties are required to contact the registry to arrange to file documents confidentially.
To read more, visit the FCC website: https://www.fct-cf.gc.ca/en/home
Other Courts and Tribunals
Other Courts and tribunals are taking similar measures. We will be continuing to monitor the situation as it evolves.