The situation regarding COVID-19 is changing rapidly, this post is current as of May 19, 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:
- pre-trial conferences for cases where trial dates have been fixed and the focus will be on resolution of the case;
- motions and applications made without notice, on consent of all parties, and that are confirmed as unopposed, will be heard in writing, including consent motions or applications for approval of settlements for parties under disability;
- requests for chambers appointments and other case conferences; and
- all opposed short motions and applications to a judge or master, which will be subject to review in writing before being scheduled. These motions and applications will be resolved in writing unless the reviewing judge or master directs a different procedure.
To facilitate the operation of the SCJ during this time:
- service by email without obtaining prior consent or a Court order to serve a document by email is permitted where email service is normally permitted under the procedural rules;
- filings by email is permitted for urgent matters and for other matters that are proceeding during the suspension of regular operations;
- judgments, endorsements and orders of the Court are effective as of the date they are made, without physically attending at the Courthouse to have them formally issued and entered;
- the requirement to gown for Court appearances has been suspended with counsel and parties expected to dress in appropriate business attire.;
- to facilitate the open Court principle, any member of the media or the public who wishes to hear/observe a remote proceeding may email their request to the local Courthouse; and
- new claims may continue to be issued electronically.
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:
- Select motions
- Select applications
- Case Management Conferences
- Pre-Trial Conferences
- Judicial Settlement Conferences.
All contested matters will be heard by teleconference or ZOOM and hearings cannot exceed 4 hours.
Class Action Matters
Effective April 6, 2020, the following Toronto class action matters may be heard:
- Motions in writing
- Case Management Conferences
- Select motions, including case management conference, pre-certification, certification, and post-certification motions by audio or video conference, all subject to approval of the case management judge
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 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.
The first part of the 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 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 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.
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:
- The Law Society will interpret the requirement in section 9 of the Commissioners for Taking Affidavits Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client.
- Rather, alternative means of commissioning such as commissioning via video conference will be permitted.
- If lawyers and paralegals choose to use virtual commissioning, they should attempt to manage some of the risks associated with this practice, including red flags for fraud and whether there is a risk of undue influence or duress.
Federal Court of Canada (FCC)
The FCC has issued a new Practice Direction and Order on April 28, 2020, that extends the previously announced Suspension Period until May 29, 2020.
To enable some court services to continue during the Suspension Period, the FCC has:
- Extended timelines for the filing of documents and the taking of other procedural steps by 14 days following the end of the Suspension Period, to June 12, 2020.
- Continued case management hearings by telephone and videoconference, for matters being specially managed by a Case Management Judge.
- Expanded the scope of matters that may be dealt with on consent by telephone or video conference, or in writing to include certain matters that can be heard at the request of the parties or at the court’s initiative.
- Waived certain filing fees, effective April 6, 2020, until the end of the Suspension Period and the postponed the requirement to pay certain other filing fees.
- Deemed consent to service of documents electronically.
- Commissioning of affidavits remotely.
- Suspended the requirement to gown.
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/content/assets/pdf/base/MESSAGE_FROM_THE_FEDERAL_COURT_IN_RESPONSE_TO_COVID_E.pdf, https://www.fct-cf.gc.ca/content/assets/pdf/base/Covid-19%20Practice%20Direction%20and%20Order_FINAL%202020-03-17%20(for%20release).pdf and https://www.fct-cf.gc.ca/content/assets/pdf/base/FINAL%20-%20EN%20Covid-19%20Amended%20Practice%20Direction%20Order.pdf
Other Courts and Tribunals
Other Courts and tribunals are taking similar measures. We will be continuing to monitor the situation as it evolves.