COVID-19: Further Expanded Hearings in Ontario Superior Court and Divisional Court | Practical Law

COVID-19: Further Expanded Hearings in Ontario Superior Court and Divisional Court | Practical Law

On May 12, 2020 the Ontario Superior Court of Justice and the Divisional Court announced that they would further expand the matters that would be heard, effective May 19.

COVID-19: Further Expanded Hearings in Ontario Superior Court and Divisional Court

Practical Law Canada Legal Update w-025-5200 (Approx. 13 pages)

COVID-19: Further Expanded Hearings in Ontario Superior Court and Divisional Court

by Practical Law Canada Corporate & Commercial Litigation
Published on 15 May 2020 • Ontario
On May 12, 2020 the Ontario Superior Court of Justice and the Divisional Court announced that they would further expand the matters that would be heard, effective May 19.
Since March 17, 2020, the Ontario Superior Court of Justice and the Divisional Court have significantly scaled back operations in response to the 2019 novel coronavirus disease (COVID-19) pandemic. Initially only "urgent" civil matters were being heard.
On May 12, the Ontario Superior Court released a new Notice to the Profession, as well as Regional Notices to the Profession, outlining further matters that would be heard. This expands the scope of matters to be heard beyond the April 2, 2020 Notices to the Profession previously outlined in Legal Update: Expanded Hearings in Ontario Superior Court and Divisional Court.
By way of overview, these changes mean that the courts will start hearing:
  • Non-urgent consent matters in writing, where those motions were not already being heard.
  • Contested non-urgent short motions. These may be conducted either in writing or virtually.
  • Long motions and summary judgment motions by virtual hearing, in some regions.
While there is still a focus on pursuing settlement options at pre-trial, most regions no longer specify that pre-trials will be conducted solely for the purpose of settlement. Priority is being assigned to pre-trials that were scheduled between March and June and adjourned due to the pandemic.
Some regions had hoped to convene trial scheduling courts in June. Those dates have been abandoned.
While there have been changes to the procedural directions on a region-by-region basis, many of the trends identified in April still hold true:
  • Materials are to be served by email to a specified email address.
  • Courts have imposed size or page number limits on electronic materials.
  • Some courts have stated preferred formats for electronic filings, or different file types for different resources. For example, Central South region requires motion materials in PDF but factums and draft orders in Word.
  • Longer documents, such as exhibits, expert reports and case law, generally should not be sent by email. Most regions have expressed a preference for supporting documents and authorities being referenced by hyperlink.
  • No in-person hearings are being convened. Hearings will be conducted by teleconference or videoconference.
The region-specific guidance on matters being heard effective May 19, in addition to urgent matters, is summarized below. For full details, including directories of emails for filing purposes, please consult the region-specific notices, which are hyperlinked in the left-hand column.
REGION
MATTERS BEING HEARD AND PROCEDURES
Central East
Pre-trial conferences, that were previously scheduled to proceed between March 16 and July 10, 2020. The focus will be on settlement and judicial direction on steps to help the parties settle. Pre-trials will not be conducted for trial management.
  • All parties must be represented by counsel.
  • Pre-trial must be requested by email.
  • Counsel requesting the pre-trial must set out, in no more than two pages:
    • the nature of the case;
    • why a pre-trial would assist; and
    • any settlement discussions.
  • Counsel wishing to object to the request for a pre-trial must do so in writing within 24 hours.
  • No pre-trial briefs may be filed until counsel are advised that a pre-trial has been granted. Pre-trial briefs may not exceed 15 pages and are due not later than 12 p.m. on the Friday before the pre-trial. Any additional documents must be hyperlinked or available by Dropbox or a similar technology.
  • The pre-trial will be conducted by video or teleconference. Counsel must make arrangements. The pre-trial may not be recorded.
  • Counsel must ensure that the arrangements include the ability for caucusing with the pre-trial judge.
Rule 7 motions for court approval of settlements for parties under a disability:
  • Motions are to be filed by email at specified addresses.
  • Exhibits to affidavits should be hyperlinked or made available by Dropbox or a similar technology.
  • A draft judgment should be submitted with the motion material.
Urgent estate matters:
  • Matters may be considered urgent where access to assets is needed to support dependents or for a sale of property.
  • Materials to be served by email to designated addresses. Materials must not exceed 35 MB.
Consent motions:
  • Motion materials must be filed via email to specified addresses. Materials must not exceed 10MB but must include:
    • notice of motion;
    • supporting affidavit;
    • email addresses for all parties;
    • executed consent;
    • drafted order, approved by all parties; and
    • a draft order for execution.
  • If the materials duplicate a basket motion previously filed in hard copy, the draft order must state that the previous motion is withdrawn.
Contested short motions: 
  • Contested motions typically requiring one hour or less for argument will be heard in writing.
  • Motion materials, including factums not exceeding 15 pages, must be filed by email to specified addresses. Instead of casebooks, counsel should file a list of cases with hyperlinks. Each party's materials may not exceed 35 MB.
  • The moving party must provide a written undertaking to file original motion materials and pay any fees within 45 days of court resuming normal operations.
  • Responding party must file any materials, including a factum not exceeding 15 pages, by email.
  • If motion materials were previously filed in hard copy, they must be refiled electronically. The draft order must state that the previous motion is withdrawn.
Central South 
Consent motions, basket motions and court approval motions: 
  • Materials must be filed by email to the court office where the file is located.
  • Emails are limited to 10MB, absent an order allowing multiple emails.
  • Motion materials must be in PDF with hyperlinks to tabs and exhibits. Factums and draft orders must be in Word.
Motions in writing on agreement of all parties:
  • Materials must be delivered by email to the court office where the file is located.
  • Materials must be concise and in PDF with hyperlinks to tabs and exhibits. Factums and draft orders must be in Word. 10MB limit, absent an order permitting multiple emails.
  • Parties undertake to file materials and pay fees when normal court operations resume.
Pre-trials will be heard by teleconference only if parties agree resolution is likely:
  • Pre-trial briefs limited to 10 double-spaced pages in Word.
  • Assigned hearing date is non-negotiable.
  • Counsel who had civil pre-trials scheduled to be heard in March, April, or May 2020, should contact opposing parties to make arrangements.
  • Court will start to hear pre-trials that had not been previously scheduled.
  • Counsel must have access to instructing party at all times during pre-trial.
Contested short motions and applications:
  • Court will hear motions that can be argued in 45 minutes or less by Zoom or conference call.
  • Counsel can request date from Trial Coordinator after service completed and responding material filed.
  • Concise motion material must be in PDF with hyperlinks to tabs and exhibits. Draft orders in Word. Materials are filed by email to a specified address.
Long motions and summary judgment motions:
  • Court will hear motions and summary judgment motions of three hours or less by Zoom or conference call.
  • Counsel can request date from Trial Coordinator after service completed and responding material filed.
  • Concise motion material in PDF with hyperlinks to tabs and exhibits. Draft orders and concise facts in Word. Filed by email to specified addresses.
Case management and class proceedings:
  • The court will hear case conferences in case managed and class proceeding matters.
Central West
Rule 7 and consent motions:
  • Materials must be delivered electronically and not exceed 10MB.
  • Parties must include electronic copies of all previously filed documents relevant to the motion and undertake to withdraw any previous motion.
  • Parties must undertake to paper file all materials and pay fees when courts resume normal operations.
Motions in writing on agreement of all parties:
  • Materials must be filed electronically and not exceed 10MB. Body of each affidavit not to exceed 15 pages and attach only relevant excerpts of exhibits.
  • Factums must not exceed 20 pages.
  • Parties must undertake to file all materials and pay fees when courts resume normal operations.
Long motions originally scheduled between March 16 and May 31:
  • Counsel will receive an email communication. Counsel must respond with requested information, including whether parties agree to have matter dealt with in writing or by video or teleconference.
  • If all parties agree to proceed in writing or by tele/videoconference:
    • materials must be filed electronically and not exceed 10MB. Body of each affidavit not to exceed 15 pages and attach only relevant excerpts of exhibits;
    • factums are limited to 20 pages for motion in writing;
    • parties must undertake to file all materials and pay fees when courts resume normal operations.
  • For matters where parties agree to proceed by virtual hearing, the court will arrange a teleconference to deal with scheduling and directions, including timetable and length of factums.
  • If parties do not agree to proceed by video/teleconference:
    • the party seeking a virtual hearing shall file written submissions not exceeding two pages setting out why the matter should be heard virtually;
    • the responding party may file responding submissions, not longer than two pages, within five days;
    • there is no right of reply;
    • if the court determines the matter should be heard by video or teleconference, parties must follow the procedures outlined above.
Trials and Assignment Court:
  • All trials scheduled up to the end of June are adjourned. An assignment court date will be scheduled when a date is set to resume in-court operations.
  • Civil jury trials are adjourned until August 31, 2020. Counsel will be receiving an email communication regarding settlement, mediation and further pre-trial dates.
Civil matters scheduled June 1, 2020 to July 3, 2020:
  • If parties agree that matters can be heard in writing, parties should follow the procedure set out above for motions in writing on consent of all parties.
  • All other matters scheduled for June will be heard by video or teleconference on the scheduled date, unless otherwise advised in advance.
  • Though the date will remain the same, the time of the hearing may change.
  • If either party objects to proceeding virtually:
    • the party seeking a virtual hearing shall file written submissions not exceeding two pages setting out why the matter should be heard virtually;
    • the responding party may file responding submissions, not longer than two pages, within five days;
    • there is no right of reply;
    • the court will decide whether the matter will proceed by virtual hearing or in-person once courts resume in-person hearings.
  • Motions and applications proceeding by video or teleconference will follow the procedures set out above. Long motions will not be scheduled unless factums are filed.
Pre-trials:
  • Briefs are to be filed electronically and limited to 20 pages. Only necessary excerpts of relevant documents should be attached.
  • Further expansion will be considered based on availability of judicial and court resources.
East
Ex parte, consent and unopposed motions and applications:
  • Will be heard in writing. Motions materials are filed by email to the specified email address.
Contested motions and applications in writing:
  • All parties must agree to have the matter heard in writing.
  • Motion materials are filed electronically at specified address.
In-writing motions or applications under Rule 7 and consent motions:
  • Are being dealt with in writing. Materials to be filed by email to specified address. The presiding judge has discretion to convene a teleconference or pose questions to the moving party by email.
Motions and applications adjourned as a result of COVID-19 may be reconvened by virtual hearing.
Other motions and applications:
  • Need not be urgent, but the requesting party must demonstrate the hearing will advance the case.
  • Request can be made in an email not exceeding two pages and attaching the notice of motion.
  • If leave is given, it will proceed virtually. Further directions will be given.
Case conferences and requests for case management:
  • Requests can be made by email to a specified address.
  • Case conferences will take place by teleconference.
  • A master or judge conducting a case conference may schedule a long motion or summary judgment motion in appropriate circumstances.
Pre-trial conferences:
  • Preference will be given for conferences originally scheduled from March through June.
  • Parties must make teleconference or videoconference arrangements or be prepared to connect to one provided by the court.
  • All parties and counsel must participate. They must be ready to explore settlement and have authority.
  • Pre-trial briefs are limited to ten pages.
  • Requests and pre-trial conference briefs must be filed electronically. Reports, authorities or other relevant documents are to be hyperlinked in the brief.
Class proceedings:
  • Requests for appointment of a Class Proceeding judge in a proposed class proceeding are to be directed to the Regional Senior Justice.
  • Case conferences will be held by teleconference and motions by video conference.
The Notice to the Profession also sets out important information about:
  • Protocols for identifying cases in email reference lines.
  • Use of email and the filing portal.
  • Payment of filing fees.
  • Access to virtual hearings by the public and the media.
Northeast
Pre-trial conferences:
  • Will be arranged by email request to the trial coordinator.
  • Pre-trial brief is to be filed by email not exceed 20 pages. Only excerpts of relevant documents should be attached.
  • Pre-trial conferences will proceed by teleconference. A party wishing to proceed by videoconference must request one from the trial coordinator by email.
  • Clients must be available throughout the pre-trial to give instructions. Parties will also be required to provide certain undertakings before being given the call-in details.
Consent matters in writing:
  • Materials shall be submitted by email.
  • Briefs must not exceed ten pages. Case law and attachments shall be referenced by hyperlink. 
Motions and applications for approval of settlements under Rule 7:
  • Materials shall be submitted by email.
  • Supporting material and case law and attachments shall be included by hyperlink. 
Contested motions and applications:
  • Where possible, contested matters will be heard in writing. Matters may be heard by video or teleconference.
  • Requests for a virtual hearing must be made to the trial coordinator.
  • If a hearing is granted, parties must comply with the applicable rules, including confirmation requirements. The form must be emailed both to the court services email address and the trial coordinator.
  • Motion materials must include a factum of not more than six pages in Word format. References to case law must be by hyperlink.
The Notice to the Profession also sets out important information about:
Northwest
Rule 7 and consent motions:
  • Materials must be delivered electronically and not exceed 10MB.
  • Parties must include electronic copies of all previously filed documents relevant to the motion. If a motion was previously filed in writing, counsel must advise of this and undertake to withdraw the previous motion.
  • Parties must undertake to file all materials and pay fees when courts resume normal operations.
Motions in writing on agreement of all parties:
  • Materials must be delivered electronically and not exceed 10MB.
  • Parties must include electronic copies of all previously filed documents relevant to the motion. If a motion was previously filed in writing, counsel must advise of this and undertake to withdraw the previous motion.
  • Parties must undertake to file all materials and pay fees when courts resume normal operations.
Other motions and applications:
  • Need not be urgent, but the requesting party must demonstrate the hearing will advance the case.
  • Request can be made in an email not exceeding two pages and attaching the notice of motion.
  • If leave is given, the hearing will proceed virtually. Further directions will be given.
  • Motion materials shall be filed electronically, and limited to 20 pages including factums, if ordered. Motion materials may contain hyperlinks to exhibits, case law and other pertinent documents.
Pre-trial conferences:
  • Will proceed by video or teleconference. The parties must make arrangements or be able to connect to a conference facility provided by the court.
  • Requests must be made by email to the trial coordination office. Priority will be given to pre-trials that were originally scheduled from March to June. 
  • Parties must be ready to explore settlement and participate with settlement authority. 
  • Pre-trial briefs are limited to ten pages. Expert reports, case law and other pertinent documents shall be hyperlinked.
  • Parties must undertake to file all materials and pay fees when courts resume normal operations.
Southwest
Pre-trial conferences for the purpose of settlement that were previously scheduled for March through June:
  • Parties must make teleconference or videoconference arrangements.
  • Parties must make specific certifications around readiness to settle.
  • Pre-trial briefs are limited to ten pages.
  • Requests and pre-trial conference briefs must be filed electronically. Reports, authorities or other relevant documents are to be hyperlinked in the brief.
In-writing motions or applications under Rule 7 and consent motions:
  • Materials to be emailed to the generic email address for the particular court.
Short contested motions and applications:
  • Requests made by email, not exceeding two pages, explaining why the issues are not complex.
  • Summary judgment motions are not currently being scheduled or heard.
  • If a hearing by teleconference is granted, counsel must make arrangements.
Case conferences under Rule 50.13 and in class proceedings.
Depending on the circumstances, court fees may have to be paid:
  • Electronically.
  • By courier. 
  • By undertaking to pay once court resumes operations.
Toronto
Pre-trial conferences:
  • Priority is being given to pre-trials that were cancelled between March 16 and July 3.
  • Parties must attend with intention and authority to settle, and there should be no impediment to settlement.
  • Pre-trial may be requested by sending Toronto Civil Pre-Trial Conference Request form, signed by all parties, by email.
  • Briefs of no more than ten pages must be filed at least five days before the pre-trial by email, in searchable PDF format.
  • Expert reports are not to be included. Hyperlinks to an external, secure database may be provided for summaries of important reports.
  • Voluminous records are not to be filed, by hyperlink or otherwise.
  • The court retains discretion to vary these guidelines.
In-writing motions or applications under Rule 7 and consent motions:
  • Materials to be filed in searchable PDF format by email.
  • If counsel have filed hard copy in-writing motions since March 17, they must re-file electronically.
Commercial and Estate List matters. In addition to urgent matters, the following matters may be heard:
  • Select motions.
  • Select applications.
  • Case management conferences.
  • Pre-trial conferences.
  • Judicial settlement conferences.
Contested matters will be limited to four hours and conducted by Zoom or another videoconference technology.
Class action matters:
  • Parties may file motions in writing by email.
  • Parties may request a case conference by email. The court will confirm arrangements for either a video or teleconference.
  • Pre-certification, certification and post-certification may be heard by video or teleconference, if approved at a case management conference. Motion materials are filed by email.
Construction Lien matters:
  • Motions that may be brought ex parte, on consent or unopposed will be heard in writing, unless the master directs otherwise.
  • Motion materials should be filed in the same manner as other civil motions.
  • If the master determines that an oral hearing is required, a hearing date and time will be arranged by the construction lien office.
  • Trial management conferences and hearing for directions are being scheduled, with priority to hearings adjourned since March 16. Pending hearings may proceed as scheduled.
  • Limited settlement conferences are being scheduled, with priority to those adjourned between March 16 and July 3, 2020. Parties must attend with full authority to settle.
  • Oral hearings will be conducted by video or teleconference, with parties being expected to make arrangements. 
  • Opposed short motions are being governed in the same manner as other civil motions.
  • Special procedures have been adopted for motions to vacate a lien by payment into court. A draft order incorporating necessary directions to the Accountant of the Superior court as a result of the pandemic is available at on the Superior Court of Justice website.

Divisional Court Practice Advisory – New Scheduling & Electronic Document Protocols

On May 13, 2020, the Divisional Court issued Notice to the Profession – Divisional Court – For Hearings During COVID-19 Pandemic (May 13, 2020) (Notice to the Profession). This replaces the Divisional Court's previous notice dated April 2, 2020.
The Notice to the Profession applies to the scheduling of all Divisional Court matters. During the suspension of ordinary court operations, only matters scheduled in accordance with the Notice to the Profession will be heard. All previously scheduled in-person hearings are cancelled. A party with a matter currently scheduled for hearing will have to obtain a new date for a virtual hearing.
If a matter is not scheduled for a hearing by videoconference, it will have to be rescheduled for an in-person hearing at a future date in accordance with a yet to be determined scheduling protocol.
Dates after August 31, 2020 have not yet been cancelled. A party wishing to have such a matter heard earlier may request a virtual hearing date.

Scheduling of Divisional Court Matters

Any party wishing to schedule a matter for a hearing by videoconference must contact the court through email (copied to all other parties) providing information including:
  • Title of proceedings, file number, judicial region.
  • Names and addresses of all representatives of the parties.
  • A brief description of the nature of the matter.
  • A time estimate.
  • A brief explanation of any urgency, time sensitivity or other factor the party wishes the court to consider.
  • Whether some or all of the parties consent to scheduling the matter (consent is not required, but will be taken into account).
Matters will be scheduled at the direction and in the discretion of the Divisional Court Administrative Judge or their designate. Hearings will be conducted either by teleconference through court teleconference lines or by videoconferences, using Zoom.
The court advises that it is able to hear more than just urgent matters at the moment, but not a full docket of cases. Scheduling preference will be given as follows:
  • Matters considered urgent by the Administrative Judge will be scheduled to proceed as soon as reasonably possible on a schedule to be fixed by the court.
  • Matters considered by the Administrative Judge to be not urgent, but time-sensitive, will be scheduled taking into account time sensitivity.
  • Other matters will be scheduled to be heard in due course, bearing in mind the demand for urgent and time-sensitive matters and the technological and staffing limitations under which the court is operating. To the extent possible, the following will be taken into account in prioritizing hearings:
    • the length of time the matter has been awaiting a hearing; and
    • the likely delay if the matter is not heard until in-person hearings resume.

Electronic Filing at Divisional Court

All materials for matters to be heard pending the resumption of in-person hearings must be electronic. This includes matters where hard copies were filed prior to the suspension of court operations.
The court has provided detailed directions for the filing of electronic documents, including:
  • Documents should be uploaded to a drop box in PDF format with a link to the drop box and instructions delivered to the court by email.
  • Documents should be clearly labelled in a manner that identifies them. Pages should be numbered sequentially.
  • Factums should be filed in both PDF and Word, with hyperlinks to authorities.
  • Books of authorities should not be uploaded.
  • A "factum compendium" containing brief excerpts of evidence and authorities (including title of proceedings and headnote) relied on in the factum, and a similar compendium for oral argument.
  • Counsel should seek directions in cases involving a protective order.
  • Where documents cannot be filed by drop box, they must be filed by email. No email may exceed 35 MB.

Motions for Leave to Appeal to the Divisional Court

  • The court will also accept requests for motions in writing for leave to appeal. If a motion for leave is scheduled, the court will contact the parties to confirm arrangements for filing documents or convene a case management conference. This procedure applies to all motions for leave, whether initiated before or after the suspension of court operations.
After the end of the suspension of regular court operations, parties will be required to file paper copies of the documents filed electronically during this period. Documents filed before the suspension will not need to be refiled, even if hyperlinks were subsequently added.
For complete details, see Notice to the Profession – Divisional Court – For Hearings During COVID-19 Pandemic (May 13, 2020).

Takeaways:

These most recent notices demonstrate that court practices and procedures will continue to evolve throughout the period of the pandemic. While it will likely be some time before we see courts returning to normal operations, they will continue to adapt in order to release some of the backlog that would result from a complete closure of the courts.
The extent to which the use of technology that is now being embraced out of necessity will continue to be employed following the COVID-19 pandemic remains to be seen. In the meantime, Practical Law Canada will continue to monitor developments from the courts. For more information, see COVID-19: Canada Litigation Updates Checklist.