What Is "Urgent" Enough? Update On Procedural Priorities During The COVID-19 Lockdown

• Published date: 29 May 2020
• Author: Ms Jennifer King and Chris Hummel
• Subject Matter: Privacy, Coronavirus (COVID-19), Privacy Protection, Litigation, Contracts and Force Majeure, Operational Impacts and Strategy
• Law Firm: Gowling WLG

The coronavirus has proven infectious to court dockets too. With no precedent for a disruption of this scale, a unique and uncertain strain of jurisprudence has emerged. Most, if not all, COVID-19 case law to date is procedural: will matters move forward at all and, if so, how? In this unfamiliar context, words like "urgent" and "time-sensitive" have taken on a new and evolving meaning.

Building on previous updates by Gowling WLG lawyers, we look at how judges in civil courts are prioritizing matters, and defining degrees of "urgency" (standards of "urgency" are different in criminal and family courts, neither of which we discuss in this article).

Even if restrictions lift in the coming weeks, this jurisprudence is likely to remain relevant as the pandemic unfolds and the world responds to further potential outbreaks.

"Notices to the profession" are now the procedural road-map

On March 15, and again on April 2, the Ontario Superior Court issued Notices to the Profession. While these notices carry no legislative force, they have become the legal backbone for judge's procedural decisions and endorsements.

According to the March 15 Notice, civil motions and applications may be heard if they are "related to public health and safety and COVID-19". Matters that are not public health or COVID-19 related can still be heard only if they are "urgent and time-sensitive", or the court considers it "necessary and appropriate" in the circumstances. The Notices provide a procedure for bringing an "urgent" matter.

The April 2 Notice expands these exemptions to include "select" Pre-trial Conferences and motions made on consent.

The Divisional Court has also opened its doors to hear "more than" just urgent matters, starting Monday April 6, 2020, subject to available resources. The court has drawn a distinction between three tiers of matters: "urgent", "time-sensitive" and "other" matters, under D.2 Scheduling Divisional Court Matters, paragraph 6:

a. Where a matter is considered urgent by the Administrative Judge or his designate, the matter will be scheduled to proceed as soon as reasonably possible on a schedule to be fixed by the court.

b. Where a matter is not urgent, but is time sensitive, in the opinion of the Administrative Judge or his designate, the matter will proceed on a schedule to be fixed by the court, taking account the time sensitivity.

b. 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 that it is possible to do so, 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, will be taken into account in prioritizing hearings.

Is there a difference between "urgency" and "time-sensitivity"?

So far, there is no explicit judicial analysis on the Divisional Court's distinction between "urgent", time-sensitive" and "other" matters as referenced in the Notice. To confirm this, we have reviewed all Ontario decisions on "urgency" released from March 15^th to April 30^th and summarized them in the table below. The Divisional Court has applied the term "urgent" but not "time sensitive". The Ontario Superior Court has applied both terms, sometimes separately, and sometimes together (seemingly interchangeably).

When determining both urgency or time-sensitivity, judges tend to apply a "necessary and appropriate" test. The Divisional Court in Chalich suggested that an "irreparable harm" or "compelling circumstances" are required to establish urgency.

Courts have repeatedly applied...