Courts across the country have taken steps to help curb the spread of COVID-19, and to protect litigants, lawyers, court staff and the judiciary. The Court of Queen’s Bench for Saskatchewan is no exception.
The Court issued a new Practice Directive (the “Directive”) on Friday, March 19, 2020, effective until further notice. To a large extent, the Court has ceased regular operations. The changes contained in the Directive will certainly have an impact on all court proceedings in Saskatchewan involving creditors.
All applications that have been made to the Court but not yet heard are adjourned and will have to be rescheduled when permitted by the Court, unless the application is deemed or determined to be urgent or an emergency. The Court will contact all parties on matters with outstanding applications to advise whether the application is adjourned or is to proceed.
Chambers will continue on the regularly scheduled Chambers dates for each Court, but applications will be limited to matters that are deemed or determined to be urgent or an emergency.
On the applications that do proceed, where possible parties and counsel are required to appear by telephone or video conference.
The Directive expressly states that the Court expects parties to reasonably accommodate adjournments and that cooperation and understanding are expected and will be appreciated.
Urgent and emergency matters
An application can proceed if a judge of the Court determines it is an urgent or an emergency matter.
The Directive includes several situations in which applications will be deemed to be regarding urgent or emergency matters. For example, in foreclosure actions, an application to approve a judicial sale is deemed to be urgent. Also included would be situations when serious consequences to persons or harm to property may arise if the application does not proceed expeditiously (but a separate application would need to be made to have the application deemed urgent).
Preservation orders (such as under section five of Saskatchewan’s The Enforcement of Money Judgments Act) are also deemed urgent. It might be argued that if properties in a foreclosure need to be preserved (perhaps in an application for immediate possession), an application would be determined to be urgent and could be allowed to proceed. We have now had success in getting a determination of urgency in those circumstances.
If a matter is not deemed to be urgent or an emergency, an application must be made to ask the Court to determine that the matter is urgent or an emergency. This is currently being done as a separate application in addition to the application for the relief that is being sought. The focus of the first application is asking the Court to determine whether the matter is an urgent or emergency matter.
If a judge of the Court concludes that the subject matter of the underlying application is urgent or an emergency, she or he will then give directions on the filing of responding materials and will set the date for the hearing of the underlying application.
Issuing and filing documents
Parties may still issue Statements of Claim and other commencement documents in the Court. Each courthouse has implemented procedures to minimize virus transmission risks. Limitation periods are not affected by the Directive. If a Statement of Claim is not issued within the applicable limitation period, the claim will be statute barred.
Unsworn affidavits may be filed if the party giving the Affidavit is available by phone or by electronic means to swear or affirm the document.
Applications without Notice can still be made as usual. These would include applications for orders for substitutional service or proceedings such as uncontested foreclosure matters. It also appears that the Court will allow an application to proceed if the other party consents to the relief sought and possibly to the matter being heard (but that is still not totally clear).
Service of documents
This is not part of the Directive, but personal service upon individuals during a pandemic is not advisable and may not be permitted or acceptable to the process server. If parties do not have counsel or cannot be served by registered mail (and registered mail may be suspended at some point), the alternatives are agreements between the parties to accept documents sent by email or other means or an order for substitutional service (allowing service by email or other means).
Matters are changing rapidly. As applications are dealt with, we will get a better understanding of what the Court will consider urgent or an emergency and how processes and actions are impacted.
If you have any questions or matters you would like to discuss please contact a member of our Miller Thomson team.
Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.