Over the past few weeks, lawyers and litigants alike have received a lot of information and guidance on the status of the justice system in these challenging times. In particular, great strides have been made to keep the system moving despite the shuttering of offices and court houses amid the stay at home orders impacting most of the population. So far, urgent matters have been heard remotely on an expedited basis, limitation periods have been suspended in Ontario retroactive to March 16, 2020, electronic filing for court documents has been greatly expanded and legal governing bodies have been offering services to accommodate lawyers.
Over the past week, the courts have continued to move forward to accommodate us in the midst of the COVID-19 pandemic.
Further Expansion of Court Operations
On April 2, 2020, Chief Justice Morawetz issued another Notice to the Profession advising of expanded court operations during this pandemic, to be effective April 6, 2020.
The notice sets out the courts’ expanded operations for civil, criminal and family proceedings throughout Ontario. The expanded operations protocol is broken-down by region, but the following civil matters will now be heard throughout all regions:
- Pre-Trial conferences will be conducted, provided that they have a “settlement objective”. In other words, the court will entertain these meetings provided the parties have an intention of settling the matter and not gearing up for trial;
- Motions that apply to parties under disability will proceed;
- Consent motions and applications for approval of settlements will be heard, provided they are brought in writing;
- The Divisional Court will begin to hear non-urgent matters beginning on April 6, 2020, subject to resources and availability; and
- The Commercial and Estate Lists in Toronto will begin to hear select motions, applications, case management conferences, pre-trial and settlement conferences, provided that they are under four hours in length.
All of these hearings will be conducted on a “virtual” basis, either by video or teleconference.
The Ontario Court of Appeal has also announced that parties on non-urgent appeals that were scheduled between March 17 and April 3, 2020 can request that their appeal be heard in writing. If the parties cannot agree on whether the appeal should proceed in writing during this time, they may request an interim hearing by teleconference to have this issue determined.
For instance, in Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 244, the subject appeal was to proceed on April 9, 2020. The Respondent opted to have the appeal determined in writing and the Appellant sought an adjournment for it to be heard orally in September, 2020.
The court allowed the parties to argue this issue by teleconference and it was ordered that the appeal would proceed in writing by virtue of the fact that the appeal was capable of being determined solely on a written record and a delay would be prejudicial to the Respondent. The court also noted that “it is not in the interests of justice to overburden the court by adjourning matters that can be dealt with fairly, as scheduled. The backlog that will be created by cases that must be adjourned to protect the public and ensure fair hearings will be imposing and it should not be unnecessarily aggravated”.
The Wong decision is a positive step, as it allows appeals to continue to be adjudicated during this pandemic without the need for attendances in court.
Urgent Matters Continue to be Heard
Additionally, pursuant to the previous Notice to the Profession dated March 15, 2020, the Superior Court will continue to hear matters that are designated as urgent. The court has not officially defined what exactly constitutes an urgent matter yet. However, matters related to public health and COVID-19 specifically have been given the highest priority, such as applications by the Chief Medical Officer of Health and COVID-19 related injunctions.
Also, since the notice was published, the court has released a number of decisions which provide some guidance on which sort of matters may qualify as urgent. Some examples include:
- Situations that pose an immediate and serious risk of financial loss;
- Relief from forfeiture applications for commercial tenancies; and
- Matters which involve compliance with court orders (or lack thereof).
It was also recently held that real estate deals can give rise to urgent hearings in this climate. In Corfinancial Corp. v. Amazon Land Development Corp. 2020 ONSC 1879, it was ordered that the sale of a large parcel of commercial land should close pursuant to an agreement of purchase and sale. The land was encumbered by a number of cautions and mortgages and the sale was ordered to close pursuant to a motion for partial summary judgment which was heard by telephone conference on March 25, 2020 and the decision was released on March 31, 2020.
These decisions have made it clear that, for a matter to qualify as urgent, it does not have to be proven that irreparable harm will result if the matter is not heard. However, parties do need to demonstrate that either irreparable harm or immediate and significant financial repercussions may result.
Procedure for Urgent Motions
In the meantime, parties who seek to have urgent matters heard must contact the applicable courthouse by email and set out the basis for the urgent hearing request. The email should also attach court materials which clearly demonstrate the urgency of the matter. If the court opts to hear the matter, a hearing date will be set within a few days.
Materials for the hearing can be filed by email and affidavits can be commissioned by videoconference. Unsworn affidavits can be filed in advance of the hearing, but the party must be available to swear the document during the hearing either by telephone or videoconference.
As for the hearing itself, the presiding judge can opt to hear it by telephone or videoconference. The lawyer arguing the matter is expected to dress in business attire, but there is no need to gown. Time limits for the hearing will be imposed and strictly enforced. The resulting order will be signed by the presiding judge and sent out by email, it may then be issued and ordered at the courthouse, unless the court directs otherwise.
Although this is a rather piecemeal process and we are still a long way from getting regular court operations underway, these positive steps show that the courts are moving quickly and making good faith efforts to allow the justice system to stay afloat for the time being.