Changes to court procedures due to Covid-19

The following is a summary of court procedure changes, as presented at our meeting April 14, 2020. This blog post touches on temporary limitation period freezes and temporary changes to Court procedures. It is important to consult the applicable Court or Tribunal website regularly as things are evolving quickly.

(A) Ontario Superior Court: Civil Matters

Contributor: Heather Douglas

https://www.heatherdouglaslaw.com/

As of April 14, 2020, all court hearings are being heard remotely, with a focus on extremely urgent matters.

Under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, section 7.1(2), an order was made to suspend any limitation period for the duration of the emergency. The suspension is retroactive to March 16, 2020. Any provision of any statute, regulation, rule, or bylaw establishing any period of time in which a step must be taken in Ontario, subject to the discretion of the court, tribunal, or a decision maker, is suspended from March 16, 2020 for the duration of the emergency. As of the date of this post, it is unknown when the emergency will end. When the emergency ends, limitation periods will resume.

However, some limitation periods such as limitation periods dealing with construction liens are still in effect. https://files.ontario.ca/solgen-oic-limitation-periods.pdf

The relevant Notices to the Profession should be consulted regularly as they are constantly changing: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/

The Ontario Court of Appeal is hearing urgent matters. Non-urgent matters can be heard in writing on the consent of all the parties. The request can be made by email to COA.SeniorLegalOfficer@ontario.ca. The deadline to file appeals is extended. Parties can file by email, mail or drop documents outside the Intake Office. The practice directions for the Ontario Court of Appeal can be found here: https://www.ontariocourts.ca/coa/en/notices/covid-19/ochome.htm

(B) Ontario Superior Court: Family Law Matters

Contributor: Elizabeth Mourao

https://rickettsharris.com/

As of April 14, 2020, all court hearings are being heard remotely. The relevant Notices to the Profession can be found at: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/

Pursuant to a March 15, 2020 Notice to the Profession, Ontario Family Law Courts were only accommodating urgent motion hearings. What qualifies as urgent has been defined by the Courts to be:

  1. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
  2. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
  3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
  4. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings

Effective April 6, 2020, some amendments were made with respect to matters that will be heard by the Toronto Superior Court of Justice – Family, as well as the procedure to be followed to have your matter heard. 

In addition to the urgent matters listed above, that were proceeding by way of motion, that will continue to be heard under the Notice to the Profession dated March 15, 2020, during the first phase expansion of remote hearings, the Toronto Courts are also now:

  1. Hearing Case conferences on urgent matters; and
  2. Accepting Consent orders by way of 14B Motions.

It is key to note that each Regional Court is adapting some individualized processes and one should go to their specific Region for information. It must also be remembered that once ordinary practice for filing and service of documents and page limitations of documents etc., now differ such that it is key that careful attention be given to the directions in the Notice to the Profession which can be found at: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/. Check back often as this is regularly updated.

(C) Wills

Contributor: Samuel Michaels

http://smlegal.ca/about/

Virtual witnessing of wills and power of attorneys are now allowed for the temporary period of the Covid 19 emergency.

One of the witnesses must be a licensee of the Law Society of Ontario.

Electronic signatures are not allowed.

Legislation: ORDER UNDER SUBSECTION 7.0.2 (4) OF THE ACT – SIGNATURES IN WILLS AND POWERS OF ATTORNEY

https://www.ontario.ca/laws/regulation/r20129

The steps to a virtual will execution is as follows, as recommended in LSO’s CPD program Your Wills and Estates Practice and the COVID-19 Pandemic: What You Need to Know Right Now (REPLAY) https://store.lso.ca/wills-estates-covid-19-replay-apr-16 (highly recommended!)

Step 1: Testator, and the 2 witnesses meet by video conference. Testator signs the will document while being witnessed by everyone at the conference.

Step 2: Testator sends (mail or courier) to first witness.

Step 3: Same parties meet again at a second video conference. Witness 1 signs the will document while witnessed by everyone at the conference.

Step 4: Witness 1 sends will document to Witness 2, if the witnesses are not together in the same location.

Step 5: Parties meet again at a third video conference. Witness 2 signs the will document, witnessed by the others as above. Witness 2 sends the now executed will document back to the testator.

See CPD’s recommended resources, such as Ian Hull’s website: https://hullandhull.com/2020/04/witnessing-wills-and-poas-by-video-ontario-enacts-emergency-measures/

(D) Administrative Tribunals

Contributor: Tamar Friedman

https://lawcoaching.ca/legal-aid/

Here are highlights at two tribunals as of April 14, 2020. For more information, please go to the individual tribunal’s website as things will change. Also consult the Social Justice Tribunals Ontario website: http://www.sjto.gov.on.ca/en/

D.1. Landlord Tenant Board

  • Limitations period and procedural timelines are suspended retroactively to March 16, 2020
  • No counter services until further notice
  • No eviction orders will be issued until further notice
  • No hearings related to evictions will be heard until further notice, unless it is an urgent issue, such as illegal activity or serious impairment of safety
  • Parties can continue to file materials via mail or fax
  • The LTB will likely be sending notices via e-mail during this period, since there is delay in sending mail. It is important that parties have their current e-mail addresses on the record
  • Depending on the location, some matters are still going forward via telephone, such as mediations, case management hearings, and potentially full merit hearings that do not relate to evictions
  • All in-person hearings are suspended indefinitely
  • Updates are posted to the LTB’s website: http://www.sjto.gov.on.ca/ltb/

D.2. Human Rights Tribunal of Ontario

·  Limitations period and procedural timelines are suspended retroactively to March 16, 2020 (this will be lifted at some point)

·  No counter services until further notice

·  Parties can continue to serve and file materials via e-mail. This is preferred over mail due to processing delays. 

·  Depending on the location, some matters are still going forward via telephone or in writing, such as mediations, summary and preliminary hearings, and potentially merit hearings

·  If a party is unable to participate in a proceeding via telephone or in writing, they may request that the matter be rescheduled

·  All in-person hearings are suspended indefinitely

·  Updates are posted to the HRTO’s website: http://www.sjto.gov.on.ca/hrto/

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