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

Practical Law Canada Legal Update w-024-8534 (Approx. 9 pages)

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

by Practical Law Canada Corporate & Commercial Litigation

Ontario Superior Court Notice to Profession Regarding Expanded Hearings

On April 2, 2020 the Ontario Superior Court published Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings – Update (April 2 Notice). The April 2 Notice is supplementary to the March 15 Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings (March 15 Notice).

Practical Law Canada previously covered the March 15 Notice in Legal Update: Court Operations Suspended and Hearings Cancelled in Response to COVID-19. The court advises that the April 2 Notice supplements the March 15 Notice and should be read in conjunction with it.

Urgent matters, as defined in the March 15 Notice, will continue to be heard. Additional matters to be heard, and the procedures by which they will be heard, differ by region. By way of overview, the courts in most regions will resuming hearing:

Judicial pre-trials, but only where parties agree that they are likely to result in settlement.
Motions or applications under Rule 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (Rules), in particular for an order seeking court approval of a settlement for a minor or a party under a disability.
Non-urgent motions that can be resolved on consent or that parties agree can be resolved in writing.

In addition, there are certain consistent patterns we see in the procedural guidance for each region:

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, for example searchable PDF in Toronto or Word in Central South Region.
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, but this practice is not universal.
Hearings will be conducted by teleconference or videoconference. In most cases, counsel will make those arrangements.

The region-specific notices are 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	ADDITIONAL MATTERS AND PROCEDURES
Central East	Pre-trial conferences, with objective of settlement, where parties are represented by counsel: Pre-trial must be requested by email on consent of all counsel. All counsel must certify that they have spoken with their clients and confirmed with other counsel that the case is capable of settlement. 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-trail may not be recorded. Rule 7 motions for court approval of settlements for parties under a disability: Motions are to be filed by email. 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: Probate application where assets needed for support or sale. Revocation of probate. Applications for support of a dependant. POA/guardianship applications. A will challenge to suspend administration of the estate. Materials to be served by a single email. Attachments to be hyperlinked or made available by Dropbox or a similar technology. Matter will be heard either by teleconference or in writing, if urgent.
Central South	Consent motions, basket motions and court approval motions: Materials must be delivered by email to the court office where the file is located. Emails limited to 10MB, absent order allowing multiple emails. 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 Word format. 10MB limit, absent 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.
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. 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. Parties must undertake to file all materials and pay fees when courts resume normal operations.
East	Pre-trial conferences for the purpose of settlement that were previously scheduled for March or April: Parties must make teleconference or videoconference arrangements. Parties must make specific certifications around readiness to settle. Pre-trial briefs are limited to 10 pages. Requests and pre-trial conference briefs must be filed electronically. Reports, authorities or other relevant documents are to be hyperlinked in the brief. On April 27, parties may request pre-trial conferences dates for cancelled May dates. In-writing motions or applications under Rule 7 and consent motions: Materials to be emailed to the generic email address for the particular court. Case conferences, in appropriate cases.
Northeast	Pre-trial conferences for the purpose of exploring settlement only: Pre-trial brief is to be filed by email. Briefs must not exceed 10 pages. Case law and attachments should be referenced by hyperlink. Parties must make specific certifications regarding readiness to settle in their briefs. Counsel should make video or audio conference arrangements. Consent matters in writing: Materials shall be submitted by email. Briefs must not exceed 10 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 caselaw and attachments shall be included by hyperlink.
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. 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. Parties must undertake to file all materials and pay fees when courts resume normal operations. Pre-trial conferences not exceeding 30 minutes and dealing with one or two pressing issues: Parties must confirm in materials that they have previously discussed the issues and there is a desire to resolve them. Parties must file pre-trial brief, proof of service, identification of issues to be canvassed and draft orders. Electronic materials are limited to between 5 and 10 pages plus limited attachments. Parties must include electronic copies of all previously filed documents relevant to the motion. 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 or April: Parties must make teleconference or videoconference arrangements. Parties must make specific certifications around readiness to settle. Pre-trial briefs are limited to 10 pages. Requests and pre-trial conference briefs must be filed electronically. Reports, authorities or other relevant documents are to be hyperlinked in the brief. On April 27, parties may request pre-trial conferences dates for cancelled May dates. In-writing motions or applications under Rule 7 and consent motions: Materials to be emailed to the generic email address for the particular court.
Toronto	Pre-trial conferences originally scheduled between March 16 and May 31: Parties must certify readiness to settle. 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 10 pages must be filed at least 5 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 4 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 audio conference. Pre-certification, certification and post-certification may be heard by audio or videoconference, if approved at a case management conference. Motion materials are filed by email.

Divisional Court Practice Advisory – New Scheduling & Electronic Document Protocols

On April 2, 2020, the Divisional Court issued a Practice Advisory for Court Hearings During COVID-19 Pandemic (Practice Advisory). It advises that urgent matters will continue to be heard in accordance with the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, Suspension of Superior Court of Justice Regular Operations. However, starting April 6, 2020, the Divisional Court will begin to schedule hearings in non-urgent matters to be heard remotely by teleconference or videoconference, or in writing.

The Practice Advisory applies to the scheduling of all Divisional Court matters. During the suspension of ordinary court operations, only matters scheduled in accordance with the Practice Advisory will be heard.

The new scheduling procedure requires any party wishing to schedule a matter to 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 take into account.
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.

All materials for matters to be heard pending the resumption of in-person hearings must be electronic. 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.

Motions for leave to appeal that were filed before the suspension of in-person hearings will not be heard during the suspension. If a party considers its motion for leave to appeal to be urgent or time-sensitive, that party may seek direction from the Administrative Judge to have the motion heard forthwith.

For complete details, see Divisional Court Practice Advisory For Court Hearings During COVID-19 Pandemic, April 2, 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.

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