As of March 17th, 2020, the operations of the Ontario Superior Court have been suspended indefinitely.  However, the court expects that procedural timelines will still be met and that documents will continue to be produced and that cases will proceed through virtual means to complete examinations for discovery, mediations, pre-trials, case conferences and other hearings where possible. 

For details on court procedures in other provinces, please visit the Risk Management Counsel of Canada (RMC) ‘Guide to Court Procedures in Canada During COVID-19‘.

 

Electronic Filings

Claims and defences can still be filed electronically.

Jury Trials

No jury trials will proceed until September 2020 at the earliest.

In Person Hearings

During the suspension of in-court operations, matters will only be heard in-writing, or by telephone or video conference.  There will be no in-person hearings until July 6, 2020 at the earliest.  No order or consent is required for a hearing to proceed by virtual means.

Virtual Hearings

During the suspension of in-court operations, matters will only be heard in-writing, or by telephone or video conference.  

If you are on a virtual hearing, find an appropriate space, speak slowly and clearly and ensure your phone or computer is charged or you have a charger with you.

If on a phone chose a land line where possible.  If on a cell phone consider using a headset with a microphone.  Don’t use speakerphones or voice over internet and mute your phone when not speaking.  Say your name before speaking.

If on a video conference, business dress is required, test your camera, mic and sound beforehand.  Close any apps you may have open and reduce any devices using your internet, log in 15 minutes before the start time.  Mute your mic when not speaking, mute notifications, your screen name should have your first and last name and say your name when you start speaking.

Hearings will still be made public.

Regional Variances

Most regions are hearing motions and pre-trials where there is a real chance of settling either in writing or by way of phone conference or video conference.  The methods of filing the documents and scheduling dates vary from region to region.

Urgent Matters

Urgent matters can be heard and each jurisdiction will have its own procedure for having the documents filed and the proceeding scheduled.  Urgent matters include time-sensitive motions and application in civil matters where immediate and significant financial repercussions may result if there is no judicial hearing and outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceedings.

Both the Superior Court of Justice and the Ontario Court of Appeal will continue to hear matters on an urgent basis. Processes have been put into place to help the Courts determine whether a matter can be deemed urgent.  

Limitation Periods

The suspension of the Limitation Period in Ontario has been extended to September 11, 2020. Any provision of any statute, regulation rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended for the duration of the emergency, and the suspension shall be retroactive to March 16, 2020.

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 taken in any proceeding in Ontario, including any intended proceeding, shall, subject other discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday March 16, 2020.

As of April 16, 2020, the above does not apply to provisions of the Construction Act.

Swearing Affidavits and Witnessing Documents

Where it is not possible to administer an oath, such as signing an affidavit, in the physical presence of the deponent, a lawyer or paralegal may commission an affidavit by video.  The affidavit should state that it was commission by video conference.

Where it is impossible to commission an affidavit by video conference, 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.

Virtual Processes 

On the 5th of May 2020, the Superior Court released a decision referenced as Arconti v Smith, 2020 ONSC 2782, where the Court ordered examination for discovery to be conducted by way of video conference in the course of a mini trial. The Court noted that to prevent litigation from coming to a standstill, these virtual processes will be implemented. Accordingly, we anticipate that electronic processes will become the norm. 

Getting Back to Work

The Superior Court of Justice will not conduct in-person hearings until July 6th of 2020 at the very earliest. Beyond this date, each Superior Court jurisdiction will have its own timetable for re-scheduling in-person matters going forward. 

Presently, the backlog of adjourned matters, including trials, has yet to be addressed. This may prompt the use of alternative dispute resolution tools be they mediations, private pre trials, neutral evaluations, or arbitrations. 

Mitch Kitagawa