What COVID-19 Means for Your Court Case

By: Khrystina McMillan

April 7, 2020

As a response to the COVID-19 crisis, in mid-March courts began suspending all regular operations and hearing only urgent matters. In addition, on March 20, 2020, Ontario ordered the suspension of procedural deadlines in court proceedings, including applicable limitation periods, effective retroactively to March 16 and throughout the duration of the COVID-19 emergency.

These emergency suspensions have left many Ontario litigants feeling in limbo. Though the courts remain physically closed, they are hearing certain types of matters remotely via written or electronic hearings and are working to expand the types of matters that can be heard remotely. In this article we address what the emergency suspensions may mean for your case, and what can be done to move your case forward until the suspensions are lifted.

Superior Court of Justice

The Superior Court of Justice has released two notices advising of what civil matters may proceed during the emergency: the first on March 15, 2020 (effective March 17) and the second on April 2, 2020. Further notices are expected as the Court continues to work to expand the types of matters that may be heard. Indeed, on April 6, 2020 the Chief Justice of the Ontario Superior Court of Justice, Geoffrey B. Morawetz, spoke at a webinar for lawyers hosted by The Advocates’ Society, and advised that the court is working to transition to full remote operation.

As of April 7, 2020, the Superior Court of Justice is hearing (remotely) the following types of civil matters in Toronto:

  • Urgent and time sensitive civil and commercial motions and applications where immediate and significant financial repercussions may result if there is no judicial hearing (though the Toronto commercial list is exercising its discretion to hear certain non-urgent matters where appropriate);
  • Select pre-trial conferences (with priority going to those pre-trial conferences that were cancelled between March 16 and May 31 due to the court closure);
  • Rule 7 motions and applications (pertaining to parties under a disability); and
  • Written applications and motions that are proceeding on consent of all parties.

The types of matters being heard in other regions of Ontario are largely similar, though not identical in all regions. Litigants should review the applicable regional notice to their case.

If your matter falls within the types of matters being heard by the Court, all materials must be filed electronically to the appropriate e-mail address specified in the court announcements. It is the parties’ responsibility to ensure that the Court has all the necessary materials, which may require re-sending (via e-mail) materials previously filed with the Court.

If your case does not fall within the types of matters being heard by the Court, there are still a number of steps that litigants can (and should) take to keep their matters moving forward. At the April 6 webinar, Chief Justice Morawetz instructed litigants to work together to keep cases moving. He warned that access to hearings will be a little bit “thumpier” moving forward and there will be a backup in the courts once we come out of these emergency suspensions. It is more important than ever that litigants and counsel resolve as much as possible between themselves and practice more efficient, streamlined advocacy. We can expect the Court to have little patience for minor procedural disputes or parties who rely on the emergency suspensions to unduly delay proceedings, particularly where a delay adversely affects one party disproportionately.

Depending on the status of your case, it may be possible for your case to proceed with:

  • Pleadings
    • Pleadings can be filed electronically with the Court, including originating processes for new claims. This means that parties can still initiate new claims with the Court during the emergency suspension.
    • Parties should act reasonably and accept electronic service where able.
  • Discoveries
    • Parties should exchange documentary productions electronically.
    • Many court reporter offices are able to host virtual examinations for discovery.
    • Parties should also, where possible, complete and exchange answers to undertakings given at examinations for discovery.
  • Motions
    • If a motion will be necessary, parties can take steps to prepare and exchange motion records and written arguments (factums) such that they will be prepared to proceed with the motion as soon as the Court is able to schedule the hearing.
    • Any necessary cross-examinations can be conducted virtually.
  • Mediation
    • Many mediators are now offering virtual mediations.
  • Pre-Trial
    • As noted above, the Court is scheduling certain pre-trial conferences.
    • In addition, parties can work together to complete a number of other pre-trial steps to streamline trial, for example (as applicable) agreeing to a joint book of documents, agreeing to an agreed statement of facts, delivering and responding to requests to admit, exchanging lists of witnesses and will-say statements, and agreeing on other aspects of the conduct of trial.

Divisional Court

On April 2, 2020, the Divisional Court announced that, starting April 6, it would begin to schedule electronic hearings on non-urgent matters arising throughout the Province of Ontario, subject to available resources. The Divisional Court does not yet have the capacity to hear a full docket of cases, so preference will continue to be given to urgent or time sensitive matters.

A party wishing to schedule a Divisional Court matter must e-mail a scheduling request to the Court explaining, among other things, the nature of the matter to be scheduled, any urgency or time sensitivity, estimated time required for the hearing, and whether all parties consent to schedule the matter (consent is not required but will be considered).

Motions for leave to appeal to the Divisional Court will generally not be considered during the emergency suspension of regular court operations. If a party considers that a pending motion for leave to appeal is urgent or time sensitive, that party may ask the Administrative Judge (or his designate) to direct that the motion for leave to appeal be dealt with urgently.

Court of Appeal for Ontario

Effective March 17, 2020, the Court of Appeal for Ontario suspended all appeals until April 3, 2020, though parties could request that their non-urgent appeals that had been scheduled to be heard during that period be heard in writing. During this period, the Court of Appeal continued to hear, in writing or remotely, urgent appeals. The Court of Appeal further ordered, effective March 16, 2020, that the deadline to take any step in a proceeding before the Court of Appeal for Ontario is extended, unless the proceeding is not adjourned or is being case managed.

On April 6, 2020, the Court of Appeal for Ontario released a Practice Direction Regarding the Conduct of Matters During the COVID-19 Emergency, announcing that all matters scheduled to be heard on or after April 14, 2020 will proceed remotely. All materials must be filed electronically, preferably in text-searchable PDF format with hyperlinks to key documents and cases cited. If the parties had already filed hard copies with the Court, they must re-file electronically in accordance with the instructions set out in the Practice Direction.

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