As set out in an earlier Communiqué, the COVID-19 pandemic has led to a number of changes to the practice and procedure of civil litigation in Ontario. This Communiqué provides an update on some of the additional changes over the past few months.
Update on Limitation Periods
On March 20, 2020, in response to below-noted court suspensions, Ontario’s Lieutenant Governor in Council made an Order under section 7.1 of the Emergency Management and Civil Protection Act suspending all limitation periods and procedural timelines made under a statute, regulation, rule, by-law or Order of the Government (the “Order”).
It is important to note that the Order does not apply to limitation periods set out in contract or agreed to between parties in civil litigation. In addition, on April 9, 2020, the Order was amended to note that it does not apply to the Construction Act or the Niagara Escarpment Planning and Development Act.
On May 1, 2020, the Order was further amended to clarify that, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, any procedural timeline set out in a hospital’s by-laws in relation to the medical staff credentialing process is also suspended.
Update on Court Suspensions and Move to Virtual Hearings
By Notice to the Profession dated March 15, 2020, the Honourable Geoffrey Morawetz, Chief Justice of the Ontario Superior Court of Justice, advised that regular operations of the Superior Court are suspended in order to help contain the spread of COVID-19. On May 5, 2020, Justice Morawetz issued an Updated Notice to the Profession, advising that in-person hearings will not resume until July 6, 2020 at the earliest.
In response to the suspension of in-person operations, the Court has made efforts to promote the movement of civil claims by virtual means, and has expanded the scope of virtual hearings.
On May 13, 2020, Justice Morawetz issued a Consolidated Notice to the Profession offering direction on the scope of matters to be heard by the Court and the process for virtual proceedings (the “Consolidated Notice”). This province-wide notice is accompanied by region specific practice directions offering further guidance.
At present, the Superior Court will continue to hear urgent and emergency civil matters, including matters related to public health and safety and COVID-19. The Court will hear matters in relation to outstanding warrants issued in a Small Claims Court or Superior Court civil proceeding and “urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing”. The Superior Court now also has the broad discretion to hear “any other matter that the Court deems necessary and appropriate to hear on an urgent basis.”
Pursuant to the Toronto Regional Directive, the Superior Court in Toronto will hear pre-trial conferences (virtually), motions and applications on consent (in writing), contested short motions and applications (in writing unless the Court directs a different procedure), and requests for case conferences (by e-mail).
With respect to process, the provincial Consolidated Notice sets out specific requirements for the electronic filing of court documents, and advises that, notwithstanding provisions in the Rules of Civil Procedure, consent or a court order are no longer required for service of documents by e-mail or to proceed by virtual means.
The Consolidated Notice makes a clear statement that matters ought not to grind to a halt because of COVID-19 restrictions where they can move forward virtually. In the Consolidated Notice, Justice Morawetz encourages parties to “engage in every effort to resolve matters” and states:
During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent they can safely do so through virtual means. This guidance also applies to self-represented parties.
For example, where it is possible through virtual means to comply with procedural timelines, produce documents, engage in discoveries, attend pre-trials, case conferences and hearings, and respond to undertakings, those steps should be pursued. Where COVID-19 has prevented lawyers and parties from fulfilling their obligations, they should be prepared to explain to the Court why COVID-19 has rendered compliance not feasible.
Recent case law supports the direction offered by the Chief Justice. In Arconti v Smith, the Superior Court ordered that an examination for discovery proceed by videoconference, despite the objections of the plaintiffs. Justice Myers held that there were no due process concerns inherent in a video hearing and stated: “In my view, in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts.” In Mann v. Chac-Wai, the Superior Court set out the specific process for a short motion in writing in Toronto, including filing documents electronically using Sync.com.
The Superior Court’s message is clear. Despite the Court’s limited scope and the suspension of in-person hearings amid COVID-19, all parties are expected to utilize available technology to move matters forward by virtual means to the extent possible. This aligns with steps taken by the Supreme Court of Canada, who today launched virtual hearings for the first time using Zoom.
Miller Thomson’s litigators are closely monitoring the changing state of the courts, administrative tribunals and legislation across the province and are able to assist with any litigation issues that may arise in this challenging period.