These are certainly challenging times. As the COVID-19 pandemic envelops the planet, we are watching businesses get shut down and services become suspended. The justice system in Ontario is no exception to this.
Thankfully, Ontario's courts have been working hard to accommodate litigants during this uncertain period.
On March 15, 2020, Justice Geoffrey B. Morawetz, the Chief Justice of the Ontario Superior Court of Justice issued an urgent Notice to the Profession Regarding Civil and Family Proceedings (the "Notice to the Profession").
The Notice to the Profession states that, for safety reasons, the Superior Court of Justice suspended all regular operations, effective Tuesday, March 17, 2020, and until further notice.
All criminal, family and civil matters which were scheduled to be heard on or after Tuesday March 17, 2020 are adjourned indefinitely. However, certain matters can still be heard during the suspension, provided the matters are deemed to be "urgent", which includes "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".
Since the Notice to the Profession was published, the Ontario courts have been working diligently to deal with urgent matters and accommodate the needs of litigants by making exceptions to the usual rules and by ordering the use of technology to conduct judicial hearings.
For instance, on March 19, 2020, in Oppong v. Desoro Holdings Inc. 2020 ONSC 1689, a dispossessed commercial tenant sought relief from forfeiture of her lease to her hair salon by the respondent landlord. Under the circumstances, it was ordered that the hearing was urgent within the meaning of the Notice to the Profession.
On the following day, the court heard Ali v. Tariq, 2020 ONSC 1695, where an applicant sought to lift a writ of execution against her property in order for a sale of the property to close the next day.
The writ was registered after the respondent obtained default judgment in Small Claims Court. The applicant found out about it during the sale process and then brought an urgent application in Superior Court to set it aside.
In hearing the application, Justice Myers acknowledged that because the judgment was obtained in Small Claims Court, the Superior Court did not necessarily have authority to set it aside. The applicant argued that the state of emergency necessitated that the motion be brought in Superior Court and that she would lose the sale of her house and suffer other losses if she could not close the sale on the following day. The matter was therefore also deemed to be urgent within the meaning of the Notice to the Profession.
On the same day, in Morris v. Onca, 2020 ONSC 1690, a judgment creditor moved for urgent relief to order judgment debtors to repay funds that they obtained from her by fraud. The debtors had ignored multiple court orders to cease dissipating the funds. The creditor was at risk of defaulting on a real estate transaction with an impending closing and the judgment debtors were actively moving assets abroad to avoid enforcement efforts.
In all three matters, Justice Myers cited the Notice to the Profession and made the following orders to accommodate the current climate:
- the matters were all directed to urgent hearings within one day;
- materials for the hearings could be served by email (rather than hard copy) without requiring an acknowledgement of receipt;
- all materials could be filed by the court as email attachments, rather than require formal hard copies;
- instead of filing Books of Authority or statutory materials, all such material was to be made available by hyperlinks contained in the parties' facta;
- the hearings would be held by telephone case conference or by videoconference technology ; and
- the endorsements would be effective as soon as they were made and formal orders did not need to be taken out.
As these decisions demonstrate, the Ontario courts are making bona fide and good faith efforts to preserve the justice system as we continue to navigate the uncharted waters of an international pandemic. These decisions may also be good news for the future – once things get back to normal, the court system may learn from this experience and adopt more innovative means to deal with urgent matters and accommodate sensitive situations.
The Notice to the Profession also states that litigants would be wise to use this time to make real efforts to resolve ongoing disputes. Both mediations and alternative dispute mechanisms like arbitration can be conducted electronically through videoconferencing without the need for in-person appearances. We have the technology to accommodate these situations and we should be making use of it.
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