Canada: Work From Home Is Driving Change In The Courts

The use of e-filing and video conferencing to keep the Courts open during the Covid-19 pandemic is increasing. The Court and its staff, along with counsel and litigants are largely working from home. Although the Courts have suspended many deadlines and limitation periods and postponed many hearings, the Courts are still open and able to receive electronic filings and communicate with counsel. Therefore, during the pandemic, existing proceedings can continue to be prepared for a hearing on the merits, new proceedings can be started, and urgent matters continue to be heard remotely. All of this has been made possible by the use of e-filing and telephone and video conferencing.

The justice system has been somewhat behind the times when it comes to the use of electronic documents and communications technologies. That being said, in the Federal Court, which sits across the Country, the Court has been using its dedicated video conferencing facilities quite routinely to allow counsel to attend hearings remotely. Nevertheless, having had to quickly increase the use e-filing and electronic communications tools during the pandemic, the tools will only become more commonly used in the Courts. As Chief Justice Morawetz of the Ontario Superior Court has been quoted as saying¹: "[W]e have been forced, and the Ministry has been forced, to accelerate its plans on moving to electronic hearings and also electronic filings and we cannot go back."

Perhaps this modernization by way of the Court's use of electronic systems will be part of broader changes in the civil justice system. As Justice Abella of the Supreme Court of Canada has recently noted²: "[W]e still conduct civil trials almost exactly the same way we did in 1906. Any good litigator from 1906 could, with a few hours of coaching, feel perfectly at home in today's courtrooms. Can we say that about any other profession." As Justice Abella noted in her article, 1906 was the year that Roscoe Pound, an American legal scholar and educator, had "criticized the civil justice system's trials for being overly fixated on procedure, overly adversarial, too expensive, too long and out of date".

Federal and provincial courts continue to issue directions and notices regarding practice during the COVID-19 pandemic. Below, we summarize key practise directions and notices of the Federal Court and Ontario Superior Court. As physical distancing continues, the Courts are signaling an increased willingness to hear matters by telephone and video conference.

The Federal Court

Practice Directions:

• March 17, 2020: Practice Direction and Order (COVID-19)³
• April 4, 2020: Updated Practice Direction and Order (COVID-19)⁴
• April 29, 2020: Practice Direction and Order (COVID-19): Update #2⁵

The current Practice Direction and Order includes:

• The extension of the previously announced suspension period to May 29, 2020 during which all deadlines under Orders and Directions of the Court of first instance and appeal are suspended (timelines set out in any Orders or Directions issued since March 16, 2020 remain in effect);⁶
• At the end of the suspension period, all deadlines will be extended by an additional 14 days;⁷
• Absent urgency or exceptional circumstances, hearings are suspended until June 29, 2020 - with the parties to pick up where they left off before the suspension period;⁸
• The exceptional circumstances include case management hearings and the hearing of motions in writing. The Court will also endeavour to accommodate requests for hearing by telephone or video conference during the suspension period on a case-by-case basis, and may take the initiative to schedule matters that are ready to be heard by telephone or video conference;⁹
• Case management hearings are being conducted by telephone (up to 90 minutes) and video conference (up to 2 hours);¹⁰
• Documents can be served and filed electronically (non-confidential documents);¹¹
• Affidavits can be commissioned remotely;¹²
• New proceedings can be filed electronically - and requests for substituted or validated service can be made by letter;¹³
• Waiver of fees payable on filing or issuance under item 1 of Tariff A of the Federal Courts Rules (i.e. statement of claim, statement of defence and counterclaim adding a party, a third party claim, a notice of application, etc.).¹⁴

The Ontario Superior Court of Justice

Key notices with respect to civil matters:

• March 15, 2020: Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings: Suspension of Superior Court of Justice regular operations¹⁵
• April 2, 2020: Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings - Update¹⁶
• April 20, 2020: Notice to the Profession, Public, Accused Persons and the Media Regarding the Suspension of Criminal and Civil Jury Trials¹⁷
• May 5, 2020: Notice to the Profession, Litigants, Accused Persons and the Media Regarding the Continued Suspension of in-court matters to July 6, 2020¹⁸

As such, under the current practice before the Ontario Superior Court of Justice:

• The Superior Court of Justice suspended all regular operations on March 17, 2020, until further notice;¹⁹
• Any period of time within which any step must be taken by a party in any proceeding in Ontario is suspended for the duration of the emergency, retroactively to March 16, 2020. All limitation periods and filing deadlines have been suspended until the end of the emergency, retroactively to March 16, 2020;²⁰
• Subject to an order of the Court directing otherwise, it is not necessary to obtain consent or a court order to serve a document by e-mail where e-mail service is permitted;²¹
• The Court will hear urgent matters during the emergency period. However, a hearing may be conducted in writing, by teleconference or videoconference, unless the Court determines that an in-person hearing is necessary.²² The Court will not resume in-person hearings of other matters until July 6, 2020, at the earliest;²³
• Courthouses currently remain open. While filings continue to be accepted at the Court Registry, filing by email is encouraged;²⁴
• Ontario Superior Court of Justice will not recommence civil jury selection or jury trials until September 2020, at the earliest.²⁵

As litigation counsel continue to serve their clients interests during the pandemic, it appears that the use of e-filing and telephone and video conferencing will only increase. It is a general principle of interpretation of the Federal Courts Rules that the Rules "shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits." It will be interesting to see how the lessons learned during the Covid-19 pandemic will be applied into the future in accordance with this principle.

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