The COVID-19 Pandemic becomes a catalyst to the modernization of litigation in Ontario beginning with changes to the Ontario Rules of Civil Procedure effective January 1, 2021

With the temporary closures of in-person courts and the sudden influx of individuals working from home, the Ontario Courts were forced to adopt much-needed measures to reform the court system. New and permanent action to modernize the justice system in Ontario is now actualized through remote attendance at court hearings and mediations, use of electronic signatures by judges and court staff, electronic sharing, issuance and certification of court documents and service by e-mail without consent or court orders.

The Attorney General of Ontario announced changes to the Rules of Civil Procedure (“Rules”) that are effective January 1, 2021. The full text of changes to the Rules can be found at O.Reg 689/20 with the most prominent changes outlined below.

The fax machine is pushed aside as e-mail becomes the gold standard for service 

A copy of an e-mail is now deemed to be authentic. Under the reformed Rules, service of documents (other than originating documents) is permitted by e-mail without the need for consent or a court order. Additionally, there is no need for certificates of service for e-mail service. Moreover, court staff can communicate and send certified court documents by e-mail. 

Virtual commissioning is here to stay

The new Rules allow for virtual commissioning. Thus, in-person commissioning of affidavits is no longer required. Remote commissioning can offer the same level of authenticity without the burden of traveling in-office.

Instant file-sharing through CaseLines allows simultaneous viewing by parties, counsel and judges

The Rules also introduce a new software called CaseLines, which is a document and evidence file-sharing software. CaseLines streamlines the file-sharing process allowing counsel and parties to upload documents for review by all participants before and during hearings, including motions and pre-trial conferences. Every document submitted by a party with respect to a hearing or a conference must be submitted to the court through CaseLines.

A party must retain the original of a document submitted to CaseLines for thirty (30) days after the expiry of the period for an appeal in the proceeding. If there is an inconsistency between the information provided in the court file and the information provided on CaseLines, the court file will prevail. Rule 4.05.3 governs deadlines, formatting, naming conventions, hyperlinking, and other requirements for CaseLines. However, it is important to note that submitting documents to CaseLines does not constitute filing or service.

Unreasonable objections to a party’s proposal of hearing method may be met with cost consequences

Lastly, a new Rule requires a party seeking a hearing or other step in a proceeding to specify the method by which the party proposes attendance at the hearing or step by either: in person, by telephone conference, or by video conference. However, the Rule does not apply with respect to proceedings in the Ontario Court of Appeal. Moreover, the Rule does not apply with respect to case conferences which are to be held by teleconference unless the court specifies a different method. Parties must object within 10 days, or 7 days before the hearing, whichever comes first. Objections will be dealt with by way of case conference held by teleconference. Further, a party with unreasonable objections may incur cost consequences. Additionally, in deciding the mode of hearing, the court will consider several factors, including the general principle that evidence and argument should be presented orally in open court, and the ability to assess witness credibility and demeanour. 

Prepared by Sarah Reich and Nikita Atkinson (articling student)