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WHAT YOU NEED TO KNOW ABOUT FAMILY & CRIMINAL COURT PRACTICES DURING COVID-19

Across the globe, courts have rapidly adapted their practices and procedures in response to the COVID-19 pandemic. While they began resuming activities and easing restrictions over the summer and early fall, many courts are now reintroducing restrictions as various regions experience a second wave of infections. In most jurisdictions, hearings that were adjourned have now been resumed; limitation periods that were previously suspended have restarted; and procedures and timelines for filings have continued on an amended basis. However, the courts have modified their normal operations substantially, and continue to update and adjust them on an ongoing basis. We have summarized below the need-to-know information about civil proceedings in a number of courts and tribunals in Ontario and Québec, as well as the Federal Courts and the Supreme Court of Canada. We will continue to monitor and update our clients and community members on applicable practices as events unfold.

Filings and Procedural Deadlines

Ontario Superior Court of Justice

 

  • In-person hearings. On July 6, 2020, the Ontario Superior Court of Justice resumed in-court hearings in certain court locations, as previously announced in the Notice to the Profession dated June 25, 2020. The list of the courtrooms that are expected to be open are included in the Notice. Additional courtrooms are expected to be open in the coming months. Trials and other hearings that are urgent or were scheduled to be heard during the suspension of the Court’s regular operations will be given priority for an in-person hearing. Then on July 21, 2020, the Court issued another Notice, advising counsel and other court participants who face challenges attending an in-person hearing to make requests to the judge or local trial coordinator to have matters heard remotely. This request should be made at the time the hearing is requested and before it is scheduled.
    • Courthouses will restrict the number of people who may be in the courthouse. Litigants are asked to arrive at least 30 minutes early due to extra screening requirements.
    • In the lockdown regions of Toronto and Peel, in-person (non-jury) matters commencing after November 21, 2020 will be required to maintain a 10-person limit in each courtroom.
      • Matters that are in progress involving greater than 10 persons in a courtroom may continue at the discretion of the trial judge.
    • The previously announced 10-person capacity limit in each courtroom in certain cities will be lifted effective November 9, 2020, in Ottawa and effective Monday November 16, 2020, in Newmarket. The Chief Justice has encouraged efforts to allow matters to proceed remotely, wherever possible.
  • Remote hearings. In conjunction with the gradual courtroom reopening, the Court will continue to hear matters remotely in writing or by videoconference. The Court has requested that parties abide by its Best Practices and Etiquette for Remote Hearings. Matters that may be heard remotely include the following:
    • unopposed motions and applications;
    • opposed short motions and applications;
    • long motions and applications;
    • requests for chambers appointments and case conferences;
    • class action case management conferences as well as pre-certification, certification and post-certification motions.
  • CaseLines. CaseLines will be used in Toronto civil cases starting the week of September 21, 2020. Parties will be notified by email that CaseLines will be used in their hearings. The Court has announced that it expects all judicial regions in Ontario will be using CaseLines by the end of 2021.
  • Jury. Most regions have continued to defer jury selection and jury trials. The Court’s regional notices detail which regions have resumed these matters.
    • Effective Monday, November 23, 2020, the Court will not commence any new jury selection in any court location except in those in a Green Zone as defined by the Ontario Government as of November 21, 2020: https://www.ontario.ca/page/covid-19-response-framework-keepingontario-safe-and-open.
    • This measure will remain in effect until at least January 4, 2021. An update will be issued on December 29, 2020.
    • Jury trials currently in progress can proceed, subject to the discretion of the trial judge.
  • Filings. The Court will accept filings via email at the specific email addresses indicated in a region’s Notice to the Profession only for urgent matters or those identified in a region’s Notice to the Profession. Any materials filed via email must then be filed in paper format, with the requisite filing fee, at the court counter when regular court operations resume.
    • Parties should file Claims or Statements of Claims through the Civil Claims Online Portal. For matters that are not “urgent” or have not been identified to be dealt with in a region’s Notice to the Profession, counsel and parties are discouraged from physically attending courthouses to file documents in person.
    • Time periods for steps in civil proceedings as established by statute, regulation, rule, bylaw or order of the Government of Ontario were suspended between March 16 and July 16, 2020.
    • The Court has also relaxed procedures related to commissioning affidavits. Where it is not possible for a commissioner to administer an oath in the presence of a deponent, the Court will accept affidavits commissioned by video. If it is not possible to commission an affidavit by video, an unsworn affidavit may be delivered to the Court, but the deponent must be able to participate in any telephone or videoconference hearing to swear or affirm the affidavit.
    • More generally, the Court has indicated that it will relieve compliance with procedural rules, regulations and statutes as necessary to manage matters before it during the emergency.

 

Ontario Superior Court of Justice – Commercial List

 

  • Hearings. Effective July 6, 2020, in-person court hearings will resume in Courtrooms 8-1 and 8-6 at 330 University Avenue as announced in the updated Notice to the Profession. Counsel will be notified by the Commercial List Office regarding these hearings.
    • The court cannot hear any matters of more than four (4) hours’ duration. All contested matters will be heard by teleconference using Zoom or another videoconference facility.
    • The Court will also begin to hear select motions, applications and conferences.
  • The procedures set out in the Notice announced on March 16, 2020, remains in place. The Commercial List is remotely hearing urgent matters, as well as select motions and applications, case management conferences, pre-trial conferences and judicial settlement conferences.
  • CaseLines. CaseLines will be used in select Commercial List hearings scheduled on or after November 16, 2020. Parties will be notified by email that CaseLines will be used in their hearings.
  • Filings. Commercial List judges are accepting materials via email. Filing hard copies is unnecessary provided that the Commercial List office is copied on the email.

 

Ontario Superior Court of Justice – Divisional Court

 

  • Hearings. On June 29, 2020, the Divisional Court issued a Notice to the Profession announcing that the Court would not resume in-person hearings on July 6, 2020, and would continue to hear matters remotely in accordance with this Notice.
    • The court’s schedule of cases is entirely suspended until September 4, 2020, and matters will not be heard according to that schedule. Only matters scheduled in accordance with this Direction will be heard. A party in a matter that has been scheduled previously for hearing up to September 4, 2020, will have to obtain a new date if the party wishes to proceed remotely. This can be done by contacting the Court by email in accordance with the process set out in the Notice.
  • CaseLines. CaseLines will be used in Divisional Court hearings starting in October 2020. Parties will be notified by email that CaseLines will be used in their hearings.
  • Filings. All materials must be filed via email. Electronic documents are required for all hearings, even if parties have previously filed paper documents. Paper copies of all documents filed electronically will be required once ordinary court operations resume.

 

Ontario Court of Appeal

 

  • Hearings. As of November 16, 2020, the Court of Appeal will no longer be conducting in-person appeals until further notice. All appeals will be conducted remotely during this time.
    • The Court has postponed its planned Ottawa sitting until 2021.
    • Effective July 16, 2020, and subject to certain exceptions, the times prescribed to take any step in a civil proceeding were reinstated.
  • Filings. All documents that are required for the hearing of any matter must be filed electronically. If hardcopy materials have already been filed, parties must file electronic copies as set out in the October 2020 Practice Direction Regarding the Electronic Conduct of Matters During the COVID-19 Pandemic dated October 26, 2020. Among other things, the documents containing text must be filed in text-searchable PDF and must be filed either via email or through delivery of a USB key by mail or courier. The filing guidelines set out in this Practice Direction apply to all materials filed on or after November 9, 2020. The Amended Practice Direction Regarding the Electronic Conduct of Matters During the COVID-19 Emergency dated July 13, 2020, applies to materials filed before November 9, 2020.
  • Affidavits. In the event that an affidavit of service cannot be commissioned due to COVID-19, the affidavit must still be completed, signed and e-filed, accompanied by an explanation as to why the acknowledgment could not be obtained.