COVID-19 Impact: The Courts – Navigating Litigation Under Lockdown In Ontario

In addition to non-essential businesses, parks and sporting events, the COVID-19 crisis has placed severe restrictions on access to Ontario's court system.

Effective March 17, 2020, the Ontario Superior Court of Justice, Ontario's primary trial-level court for civil and commercial litigation matters, suspended all regular civil operations and adjourned all hearings scheduled after that date pending the court's resumption of normal operations. The court's civil docket has since been limited to "urgent matters" with hearings conducted largely by teleconference or videoconference. More recently, on April 2, 2020, the court released a further notice announcing that the court would expand its capacity to hear select non-urgent matters. Despite this, most civil and commercial matters will still need to demonstrate urgency in order to obtain a hearing.

This update will provide a summary of the court's determinations to date as to what matters are considered "urgent" enough to be heard and a preview of the recently announced expansion to the court's capacity to hear non-urgent matters.

What Qualifies as "Urgent" Under the New Regime?

Since March 17, 2020, the court has heard a number of urgent civil motions by teleconference. Matters that have been deemed to be urgent include:

1. those which, if not addressed, may result in significant financial loss;

2. questions of whether court orders should be enforced - the courts have been clear that court orders must be complied with during the COVID-19 pandemic, and, rather than condoning non-compliance, they are willing to hear maters in which there may be good reasons for granting a stay;

3. imminent commercial and residential evictions, or those which have been executed and may require reversal; and

4. other serious issues, such as the privacy interests of children, the ability of a regulatory body to conduct an investigation, and a matter impacting an ongoing leadership contest for a national political party.

Where there is no real evidence of urgency, or where the action has a history of procedural delay, judges have factored this into their determination of urgency and have refused to hear motions.1

Examples of "Urgent" Matters Heard Since March 17, 2020

Risk of Financial Loss: A substantial risk of imminent financial losses has been a primary driver of the court's determination of urgency in civil and commercial matters. In Ali v Tariq, the sale of a property was put in jeopardy by a writ of execution granted pursuant to a default judgment that was filed against lands and premises that were to be sold.2 The motion was "urgent" because of the impending loss of the sale and "dramatic losses" if the sale did not close - particularly given the current state of economic uncertainty. In Morris v Onca, a judgment creditor who was at risk of defaulting on a real estate...