As of January 1, 2021, the Ontario Rules of Civil Procedure (the "Rules") will be amended by Ontario Regulation (O. Reg) 689/20 to encourage litigants to adapt to the increased use of virtual proceedings and electronic processes brought about by the COVID-19 pandemic. The updated Rules will also eliminate outdated and obsolete practices that are expected to make the civil litigation process more efficient and cost-effective.
The key changes to the Rules are summarized below.
Method(s) of Attendance at Hearings
Rules 1.08 and 1.08.1 will be revoked and updated with a new Rule 1.08, which will grant a party seeking a hearing the option to have it heard by person, by telephone conference or by video conference. If an opposing party does not agree with the proposed manner of attendance, they must deliver a notice of objection and the manner of appearance will be determined at a case conference. In making a determination regarding the proposed method of hearing, the court will be required to consider various factors, including:
- Whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;
- The effect of a telephone conference or video conference on the court's ability to make findings, including determinations about the credibility of witnesses; and
- The importance in the circumstances of the case of observing the demeanor of a witness.
The amended Rule 1.08 will also apply with modifications to oral examinations for discovery and mandatory mediations with modifications. However, the Rule will not apply to:
- proceedings before the Ontario Court of Appeal, which may be heard as directed by the court; and
- Case conferences, which shall be held by telephone conference unless the court specifies a different method of attendance.
Notably, Rule 57.01(1) pertaining to the factors a court may consider in exercising its discretion to award costs, will be amended to state that unreasonable objections to proceeding by telephone conference or video conference under Rule 1.08 may be considered in awarding costs.
Electronic Processes
In response to pressures to adopt to the disruptions in the Ontario justice system caused by the COVID-19 pandemic, numerous amendments were made to provide for more electronic processes. Some of the changes include but are not limited to:
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Electronic Signatures |
·Rule 4.01 will provide that the requirements for paper documents will apply to electronic documents, while the new Rule 4.01.1 will permit electronic signatures on documents to be signed by the court, a registrar, a judge or an officer. |
| Electronic Issuance of Documents | ·A new subrule 4.05(1.1) will permit any document to be issued electronically, (a) by the registrar dating, signing and sealing with an electronic version of the seal of the court a copy of the document in electronic format; or (b) by use of the software authorized by the Ministry of Attorney General for this purpose. The date of electronic issuance will be the date indicated on the document by the registrar or authorized software. |
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CaseLines |
· Rule 4.05.3 will be implemented to add specifications about submitting documents to the court through CaseLines (the new document sharing and storage e-hearing platform for remote and in-person court proceedings authorized by the Attorney General). Submitting documents to CaseLines does not amount to filing or service under the Rules. |
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Electronic Transcripts |
· Rule 4.09 will provide that transcripts are to be provided in electronic format unless the court orders otherwise. This will not apply to proceedings in the Court of Appeal. |
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E-mail communication with the Court or Registrar |
· Rule 4.12 will allow the court or registrar to send documents and communicate by email. |
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Service of Non-Originating Documents by Email |
· Rule 16 will be amended to allow for service of documents, other than originating processes by email without the need for the parties' consent or a court order. The amended Rule will also do away with the requirement for parties to prove service by email with a certificate of service. |
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Electronic Issuing and Entering of Orders |
· The new Rule 59.04 will allow for the electronic issuance of orders by the registrar. An issued order shall be provided to the person who filed the draft order via email, through CaseLines, or by pick up at the court counter at the person's request or if email or CaseLines is not available. The new Rule 59.05 will allow for the electronic entry of orders by the registrar. |
Other Notable Changes
In addition to the foregoing, the amendments to the Rules will:
- do away with many obsolete practices, such as the use of the fax machine. For instance, the amended Rules will remove the requirement to provide fax numbers and the ability to serve and deliver documents by fax; and
- permit the remote commissioning of affidavits in accordance with the Commissioners for Taking Affidavits Act, RSO 1990, c. C. 17.
The author would like to acknowledge the support and assistance of Michelle Ho, articling student at law.
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