Current State Of Civil Procedure In Ontario Courts And Recent Case Law Interpretation Of COVID-19 Court Directives

1 Introduction and Overview

In response to the COVID-19 pandemic, the regular operation of courts across Ontario has been suspended since the week of March 16, 2020. Numerous directions and notices to the profession have been issued by the different Ontario courts to address the operation of the courts during this time.

In recognition of the fundamental role the courts play in our constitutional democracy, the courts first developed procedures for urgent and emergency matters to be heard remotely during this suspension of operations. Last week, the courts began to expand the matters that will be heard remotely. The details of this expansion vary by subject matter and region.

This bulletin provides an overview of the civil matters the courts in Ontario are hearing during the suspension of operations (with a focus on Toronto where the directives are region-specific), and the procedures put in place for these matters to be heard. The information in this bulletin is current as of April 15, 2020.

This bulletin also provides an analysis of how each of the courts has interpreted the recent directions and notices to the profession. A review of the case law to date reveals four main themes:

1. The courts are depending upon cooperation between parties to limit the number of hearings required, and avoid the need for court proceedings where possible. In a number of instances, the court has sought an interim undertaking or agreement from a responding party to protect the interests of a moving party until the matter can be properly heard.

2. The question of whether and when a matter will be heard remotely is an administrative, and not a legal, determination of the court. Parties should only make submissions about the urgency of a matter when invited to do so by the court, and should not make any further submissions once a determination has been made. Parties should be cognizant that the courts are not operating at fully capacity.

3. Urgency will be determined on a case-by-case basis. Matters which have been found to be urgent include those which:

   were considered urgent prior to the suspension of court operations; are directly related to the COVID-19 pandemic; may interrupt the closing of a real estate transaction; involve a judgment debtor attempting to remove assets; involve the expiry of a government-issued permit; and involve termination of commercial leases. The court may also parse out urgent issues within larger matters. Even where a matter is found to be urgent, the court will typically first appoint a judge to hear the matter and convene a case conference to determine the process to be followed for the remote hearing.

4. The courts recognize the difficulties presented by remote hearings and the COVID-19 pandemic, and have demonstrated willingness to relax certain procedural requirements. For example, in some instances the courts have accepted unsworn affidavits, on the condition that the affiant attend the remote hearing and swear or affirm to the truth of the affidavit's contents.

   2) Suspension of Limitation Periods and Timelines by the Ontario Government

   Effective March 16, 2020, limitation periods and procedural time periods have been suspended in Ontario by government regulation for the duration of the state of emergency that has been declared in the province. The state of emergency was recently extended until May 12, 2020.

   The suspensions apply to the following:

   any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period; and any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, subject to the discretion of the court, tribunal or other decision-maker. Effective April 16, 2020, the suspensions will no longer apply to provisions of the Construction Act, or of the regulations made under it, if the provisions establish a limitation period or period of time within which any step must be taken in a proceeding, including an intended proceeding.

   3) Superior Court of Justice

   The Superior Court of Justice (SCJ) suspended all regular operations, effective March 17, 2020, until further notice. All criminal, family, and civil matters scheduled to be heard on or after March 17, 2020 have been adjourned.

   1. Civil Matters Currently Being Heard Remotely

   i) Urgent and Emergency Matters

   The SCJ continues to hear the urgent and emergency civil matters listed below. The procedure to bring an urgent matter is set out at Part B of the SCJ Notice to the Profession dated March 15, 2020: Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings

1. The following matters related to PUBLIC HEALTH AND SAFETY and COVID-19:

   applications by the Chief Medical Officer of Health for orders in relation to COVID-19; applications to restrain the contravention or continued contravention of an order made under the Health Protection and Promotion Act; applications to enforce orders requiring the seizure of premises, medications or supplies under the Health Protection and Promotion Act; appeals under subsection 35(16) of the Health Protection and Promotion Act; urgent requests for injunctions related to COVID-19; and urgent Divisional Court appeals and requests for judicial review related to COVID-19. 2. The following CIVIL and COMMERCIAL LIST (Toronto) matters:

   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; outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding. 3. Any other matter that the SCJ deems necessary and appropriate to hear on an urgent basis. The Bar and the public are advised that these matters will be strictly limited.

   The SCJ has discretion to decline to schedule for immediate hearing any particular matter described in the above list, if appropriate.

   ii) Additional Civil Matters

   In addition to urgent matters, the SCJ in Toronto has begun to hear the following civil matters:

1. select pre-trial conferences, which were scheduled to be held between March 16 and May 31, 2020, and have been cancelled due to the court closure. All parties must commit to attending remotely, and confirm that the case is trial ready;

2. rule 7 applications, rule 7 motions, and other...