For those who are waiting for things to return to “normal” in the Courts, that is not going to happen. For better or worse the Courts are going to have to adapt to deal with the backlog and to address the introduction of technology, on a large scale basis, into the Courtroom. The days of in person attendances will be few and far between and all parties are going to have to adapt to make this new reality work.
In the recent decision by MacLeod J, Scaffidi-Argentina v. Tega Homes Developments Inc, 2020 ONSC 3232, a case conference was held to determine the best manner in which to move this action forward. MacLeod J was blunt in stating that there is:
very little likelihood of traditional trials resuming before July or September and even then, it may be possible to use court rooms only with precautions and safeguards in place. This may significantly impact the number of cases that may be heard at one time, the number of matters that can proceed at all and the pace at which trials proceed. Virtual hearings are likely to retain a permanent place in the judicial tool box.
As the pandemic continues, the Court is obtaining the experience and resources to conduct more matters in the digital setting. However, to expect that the Courts will go from 0 to 60, is unrealistic. Furthermore, there is a significant backlog regarding trials and other matters.
Although trials may be scheduled to proceed in September, the Courts must deal with the backlog first and therefore, those existing trial dates may be pushed back. The scheduling of trials is in essence, stalled. MacLeod J comments that he cannot realistically schedule a trial in the latter part of 2020 or the first six months of 2021.
Even though the initial request, pre-pandemic, of scheduling a Summary Judgment motion in this matter was declined, now MacLeod J considered it a viable way of resolving the matter even with the possibility of appeal or the motions judge refusing judgment. Rule 20 of the Rules of Civil Procedure governs motions for summary judgment. It provides a mechanism in cases where there is “no genuine issue for trial” for all or part of a claim to be disposed of in a summary manner without a full trial.
Parameters were provided regarding the online filing of materials and providing hyperlinks to cases, transcripts, reports and documents.
This is the new reality for trials and hearings. Counsel will have to ensure that they have all of the appropriate equipment and means to conduct matters through video conference or teleconference. The upside is that there are no travel costs or restrictions for cases. Counsel in Mississauga can easily participate, without the travel costs, for matters in Windsor and Ottawa and this is a win for the clients. With materials being filed electronically, if the Court misplaces materials you can simply email or upload another copy without having to undergo the cost of reprinting and refiling the materials at the Courthouse.
Although the pandemic has left many things in chaos, the changes being implemented in the Courts and in litigation are for the better.