Your Questions Answered by MAG, Courts and LSO

RECENT RESPONSES

lawpro – national day for truth and reconciliation (September 30, 2021)

What impact does the federal statutory holiday on September 30, 2021 have for lawyers in Ontario, given that the day is not a provincial statutory holiday?

The National Day for Truth and Reconciliation is a federal statutory holiday. Banks, the post office and other federally regulated entities will be closed. 

The holiday will affect real estate closings, court and tribunal hearings and other legal matters.

See Lawpro Practice Tips for lawyers, including considerations relating to real estate transactions and calculating limitation periods and deadlines.

PRIOR RESPONSES

SCJ – Small Claims Scheduling Updates  

I understand that the Small Claims court is being moved from a centralized model to a decentralized model of scheduling.  What does that mean and when will this occur?

The SCJ has advised that the Small Claims Court is currently moving from a centralized model to a decentralized model for scheduling, meaning local court staff will be performing local functions.

 

The transition will occur in three phases:

 

Phase 1: E-requests.

In this phase, court staff will schedule the backlog of e-requests received by central trial coordinators.

 

Phase 2: On the shelf.

During this phase, court staff will reach out to parties of matters suspended on or after March 16, 2020 or filed between March 16, 2020 and April 6, 2021 to collect email addresses and facilitate attendance of remote hearings.

 

Phase 3: Scheduling.

The trial coordinators will schedule matters filed after April 6, 2021.

 

All local courts are moving through these phases separately and it is not possible to say when all locations will reach phase 3. However, the SCJ has advised that significant progress has been made in the last two months and nearly half of local court houses are currently in phase 2.

 

When will judgment debtor exams and garnishment hearings be scheduled?

Urgent garnishment hearings have continued.  There is no set date for when regular scheduling will resume.

What is the next step for trial continuations?

Trials commenced prior to the pandemic and subsequently suspended as a result of the pandemic have been identified and scheduled for resumption remotely, beginning in April.  Additional trial continuations will be scheduled in Phase 2.

 

In cases where a party is unable to participate in remote continuation, those trials will be rescheduled once in-person hearings are resumed.

caselines - notifications to parties

Some parties are not receiving notifications when additional documents are added to CaseLines. Is this because staff are not turning on notifications?

Notifications are already turned on by default. Counsel are encouraged to check their junk mail folder for notifications. You can also click on the People tab and select “Update Access” beside your name to indicate your preference regarding notifications.

SCJ – SMALL CLAIMS UPDATES

Some are still having trouble getting motions heard, even on consent, and some of the Small Claims Courts are not accepting virtually commissioned Affidavits in support of the motions or for other matters, like trying to get funds paid out of Court etc.  Lawyers want to know when this might be able to get back to normal?

The SCJ has advised that updates to the Small Claims Court notice to profession are expected to be posted the week of June 7th, 2021, including:

•              Updated direction on how to seek a motion hearing. Moving parties will no longer be asked to contact the court to seek a hearing date. They will file materials first, then wait for court staff to contact them with a hearing date.

•              The SCC E-Filing Service Portal is once again accepting various plaintiff-side documents in undefended claims. These documents will be listed in the notice. For the past couple of months, this portal was only accepting plaintiff’s claims (and amended plaintiff’s claims).

•              More information about the process for scheduling different hearings will be provided in the notice.

caselines – questions about PRESENTATIONS & TRAINING

Can Superior Court CaseLines presentations on family law refer to actual family law appearances such as case conferences, motions, settlement conferences etc. instead of event 1 and event 2? 

Is there a way for Court sessions to permit a test run so staff could practice uploading documents?

Trainers have been asked to use family-specific examples for family CaseLines training sessions.

However, the court cannot offer practice sessions since we use a live instance of CaseLines, and this is communicated to participants in the sessions.

Note:

The OBA is providing hand-on training to support the bar in the transition to CaseLines.

As part of this service, participants receive access to a fully functional test environment (“sandbox”), where they can fully familiarize themselves with all of the features in the platform.

The OBA offers multiple levels of registration to meet the training and support needs of the bar. Please refer to OBA CaseLines Training for all of the details.

caselines – ADDING ALL COUNSEL OF RECORD

Can court staff add all counsel of record rather than only the senior counsel, to avoid senior counsel having to add junior counsel to the case in CaseLines?

Staff have been directed to add all parties listed on the filings (for which they have an email), with the exception of Commercial List matters with more than 10 participants. See the Commercial List Filing Direction for more information.

caselines – capacity for Confidential materials

Can CaseLines functionality be changed to allow confidential materials to be uploaded so that only the judge and the uploading party can see?

No. At present, CaseLines can only used to share documents that all parties can see. Submitting confidential materials must be done by email to the Court.

caselines – questions about caselines

Who can staff speak to at the SCJ about specific questions about CaseLines?

If counsel have questions about CaseLines, they can contact the Ministry of the Attorney General Contact Centre by phone at 1-800-980-4962 or by email at info.CaseLines@ontario.ca.

Commissioners for Taking Affidavits act amendments

Can an OIC suspend and replace section 9 of the Commissioners for Taking Affidavits Act in keeping with the LSO’s interpretation that the provision “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” does not require a lawyer to be in the physical presence of the client. ​

Amendments to the Commissioners for taking Affidavits Act (COTA) were included in Bill 190, COVID-19 Response and Reforms to Modernize Ontario Act, 2020. Bill 190 was passed on May 12, 2020. Section 9 of the COTA, which was proclaimed on August 1, 2020, provides that every oath and declaration must be taken in the physical presence of the commissioner unless a regulation is made that permits the taking of an oath or declaration without being in the physical presence of the commissioner.  A regulation enabling remote commissioning came into force on August 1, 2020.

Electronic Document Filing in Estates Court

Can there be a way for lawyers file documents electronically in Estates Court?

On August 5, 2020 the Ministry released a new platform to electronically submit documents to the Superior Court of Justice in civil court actions and applications. The new Civil Submissions Online system enables the electronic submission of 39 types of estates court documents, including documents for applications to pass accounts, applications or motions for directions, orders for assistance, claims against an estate, submission of rights to the court and estates mediation. The Ministry is diligently working on potential methods to enable the electronic filing of documents in applications for certificate of appointment of estate trustee.

Online Case Search Tool

Is there any way the SCJ database could be updated remotely by court staff and accessed by lawyers for litigation searches conducted in the context of pending transactions during the current operations closure?

On August 17, 2020, the ministry launched an online tool for searching court cases (“search tool”). The search tool provides members of the public with the ability to conduct province-wide searches of Ontario Superior Court of Justice civil court case information. Searches may be conducted by case type (civil or criminal) and either the name of one of the parties or the case number.

The search tool can be used to search for the following information:

  • Court case title;
  • Name of the lawyer representing the person or company;
  • Claim amount;
  • Date the case was opened;
  • Most recent order type and date;
  • Next appearance type and date, if a future appearance has been scheduled; and
  • Whether the case is subject to a publication ban.

Please note that the search tool does not provide information about cases that are subject to statutory, common law or court-ordered public access restrictions. Users are required to set up a ONe-Key account to access the search tool, but there is no associated fee. For further information, please visit: https://www.ontario.ca/page/search-court-cases-online.

SERVICE ON CROWN IN POA MATTERS

“Can you advise whether e-mail service applies to POA matters, specifically, service on a Ministry of Transportation prosecutor with respect to notice under s. 35 of the Evidence Act?”

The Ministry has confirmed that the email service set out in O. Reg. 76/20: ORDER UNDER SUBSECTION 7.0.2 (4) OF THE ACT- ELECTRONIC SERVICE, relating Service on the Crown and Related Entities, applies to POA matters, including service on a Ministry of Transportation prosecutor with respect to notice under s. 35 of the Evidence Act.

ESTATES

“The materials usually accepted by the Toronto Estate Court (pre Covid) on an unopposed passing is not being accepted post Covid. How is an unopposed passing of accounts to proceed in Toronto?”

The Toronto Estates Lists judges are hearing select applications and motions, including matters that are proceeding in writing on the consent of all parties, pursuant to the Toronto SCJ Notice to the Profession.
The Toronto Estates Office adopted temporary procedures relating to applications to pass accounts that are proceeding on consent or unopposed. The process can be summarized as follows:

  • Where a deadline for filing a Notice of Objection or another document in an audit application was required by the RCP to be filed prior to March 16, 2020, the application can proceed to a judge in-writing on an uncontested basis.
  • Where a deadline for filing a Notice of Objection or another document in an audit application was required by the RCP to be filed on or after March 16, 2020, an amended notice of application to pass accounts may be filed containing a hearing date change to “a date to be set by the registrar”.

    A Registrar will issue the amended application and the materials required by the rules may be filed to have the application heard by a judge in-writing.

LSO 2020-21 LICENSING EXAMINATIONS

“When and how will LSO Barrister and Solicitor Examinations be held?”

 

The Law Society is moving forward with online delivery only of all licensing examinations until the end of December 2020.

Information about the examinations, including schedules and registration, can be viewed here.

The LSO will communicate delivery plans for 2021 examinations later this year.

LSO ARTICLING AND SUMMER RECRUITMENT

“In light of the continuing COVID emergency, will the LSO amend the articling and summer recruitment procedures for 2021-22?”

 

The LSO has amended the procedures for 2021-22 articling and summer recruitment as described in the following:

LICENSING CANDIDATE FEES

“Will the LSO reduce candidate fees for ‘paper’ Calls to the Bar that cannot have ceremonies?”

The Law Society is aware of the unique challenges facing candidates as a result of COVID-19.

In recognition, we are reducing Calls fees to $165 for all candidates, including those called in May. Info about refunds will be provided through your online licensing accounts next week.

Call fees are set to cover associated costs of the process. Fees for administrative or “paper” calls have consistently been $250, the same fee as a ceremonial call.

CHILD WELFARE MATTERS

“For child welfare matters that have been adjourned to June 1, 2020, can the court provide some clarification on whether counsel and clients are expected to attend court and what will happen on that day?”

Chief Justice Morawetz will shortly issue an order that will deal with this issue.  It will be supplemented by regional Notices to the Profession which will identify how child protection list events (often referred to as “to be spoken to”) are to be scheduled when the Court resumes operations.

Ontario Court of Appeal

“If I am not a party to a hearing at the Court of Appeal and wish to view it, is there a charge for accessing Court Call?

 

Members of the media or the public who wish to observe a scheduled matter at the Court of Appeal being held by videoconference or teleconference would not pay a fee to access Court Call, but should send a request in writing to the Court's Registrar at coa.registrar@ontario.ca at least 48 hours before the proceeding begins.

“Can the Court provide additional guidance concerning timelines and extensions of time with respect to Civil, Criminal and Provincial Offences Act matters?”

The Ontario Court of Appeal has posted a list of Questions and Answers intended to help the legal profession and the public understand the Court's new Practice Directions about timelines during the COVID‑19 emergency.
The material is provided for informational purposes only and does not constitute legal advice. Parties should read this Q&A in conjunction with the relevant Practice Directions, which prevail to the extent of any inconsistency.

GENERAL LITIGATION

“Is it possible to have a “Certificate of Service” on pleadings, instead of requirement to commission Affidavit of Service on motion records, which requires scheduling video conference with the other lawyer to sign the Affidavit, scanning and the page and sending to the other lawyer for them to print, commission, scan and send back in order to email the motion record to the Trial Coordinator. Can an e-signature be used, and if so, what methods are acceptable e.g. affidavit signed by docusign or by inserting a picture of a signature?”

The requirement to prove service with an affidavit of service can be dispensed with only in accordance with the rules of court. Paragraph B. 6 of the Civil and Family Notice to the Profession dated March 15, 2020 states: Where it is not possible to email a sworn affidavit, affidavits may be delivered unsworn but the affiant must be able to participate in any telephone or videoconference hearing to swear or affirm the affidavit.

“When will a daily schedule of court hearings be available on-line again?”

At present, some Superior Court of Justice hearing information is available at: http://ontariocourtdates.ca/scj/. All hearings are remote hearings unless otherwise specified.
Note that some cases do not appear in the daily court lists, including matters in writing, matters added after the list is posted and matters subject to statutory, common-law or court-ordered public access restrictions.
The Ontario Court of Justice is also working to make hearing information available as quickly as possible. It will post this information once it is able to do so.

“Given the importance of timely access to decisions relevant to various COVID-19 issues, can the courts make new decisions available on-line on an expedited basis?”

The Superior Court of Justice advises that CanLII has committed to expedite publication of any decision the judge notes as urgent.
Publication will occur within 24 hours.
The Court is also looking at other ways to post COVID-19 related matters.

“Can applications be filed at the Superior Court of Justice in civil matters?”

Yes, some regions are allowing certain applications to be emailed to the court and scheduled for hearing. Counsel would have to look at each region’s April 6 notices to the profession.

“What is the current scope of matters that may be heard in the Superior Court of Justice?”

On April 2, the Superior Court of Justice issued three provincial Notices to the Profession dealing with the expansion of remote hearings that will begin being heard on April 6, 2020.

Please see:

The complete list of matters that may be heard in each region is contained in region-specific Notices to the Profession, issued April 2, 2020. They include the process to seek a hearing, and may be found here.

The provincial notices also include directions relevant to each practice area on:

  • Compliance with Existing Procedures & the Inherent Jurisdiction of the SCJ;
  • Service by Email During the Suspension of Regular Operations;
  • Filings;
  • Orders;
  • Gowning;
  • Public and media access to proceedings;
  • Communicating with the Court, Staff and Trial Coordinators; and,
  • Assistance for Self-represented persons. 

“Can the federal government toll the running of limitation periods in the same way as in Ontario?”

The OBA has been working with the CBA and understand that the federal government's view has been that it cannot presently take the same action as in Ontario because they do not have an equivalent statutory power that was exercised here (and BC and Quebec) to toll the limitations period. 

In addition to Practice Directions and Orders from the federal courts that provide for the suspension of specific statutory deadlines within the court's power, the federal government is currently tracking issues as they arise with respect to limitation periods in individual statutes in order to consider further steps. 

The CBA is continuing to seek a solution that provides better certainty for the bar. However, in the meantime if you have concerns about the application of any specific statutory limitation period, please let us know at advocacy@oba.org and we will have it brought to the attention of the Minister of Justice’s office so it can be addressed.

PROFESSIONAL OBLIGATIONS - TRUST ACCOUNTS

“Many banks are only offering ABM transactions. Can LSO advise whether ABM slips are sufficient for trust account record keeping requirements?

The Law Society has indicated that if lawyers’ financial institutions offer ABM access to their trust accounts, it may be used for deposits only.

Lawyers who use this deposit method should:

•            Ensure that the bank card is encoded for deposit only.
•            Read the agreement carefully and make sure they understand the risks involved in using this method of deposit. In some agreements the depositor is responsible for the funds until they are received by a bank representative.
•            Always print a receipt of an ABM deposit, write the source of the funds and the client reference on the receipt, and keep the receipts in date order with your deposit slips.

For more information see the LSO: COVID-19 Response (Bookkeeping FAQs) and the Law Society’s Bookkeeping Guide for Lawyers.

REAL PROPERTY

The Land Titles Act provides for the issuance of cautions under Sections 71 and 128 which have natural expiry dates 60 days after the date of registration or closing after which the caution is automatically deleted. Presently, as the courts are closed, there is no ability to seek a certificate of pending litigation (CPL) in the interim. For so long as the courts remain effectively closed, it will be practically impossible for the cautioner to demonstrate bona fide efforts to obtain a CPL or other judicial relief. Accordingly, the Director of Titles has advised that the LRO will consider granting second cautions, and thereafter successive Cautions until some reasonable time after the courts re-open, without requiring the cautioner to demonstrate bona fide efforts to obtain a CPL or other judicial relief. The cautioner will, however, still be required to seek permission for each caution after the initial one. The land registrar will, with each such request, still consider the bona fides of the caution itself. For more information see the letter from the Director of Titles here.

“Will the Land Registry Office be relaxing requirements for registered mail for the delivery of Titles Absolute Plus Notices (LTA Notices) and implementing temporary workarounds permitting alternative service methodologies for LTA Notices?”
 

The LRO has decided against relaxing any of the current requirements for registered mail as the initial form of delivery for all LTA Notices. As has always been the case, if, for whatever reason, the registered mail is returned, then the guide provides for approved forms of alternative service. For more information see the letter from the Director of Titles here.

“Will the Ontario land registration system will be “fast tracking’ the certification of splits (defined as self-to-self “parcellization” transfer based on a reference plan in order to set-up the PINs for the subsequent conveyance of multiple lots and vendors registering a transfer (self-to-self or to a third party) in order to effect a severance in anticipation for a future conveyance) if there are transactions scheduled to close after the registration of splits.”

The Land Registry Office has decided against the “fast tracking” of certification (or any other preferential treatment) for Splits. While the Land Registry Offices remain open for certification, this is certainly not “business as usual” and parties can expect some delays in certification times. The LRO will not be entertaining any requests, urgent or otherwise, for the expedited certification of splits. For more information see the letter from the Director of Titles here.

“Some mortgage lenders, are requiring signatures signed in the physical presence of lawyers to finalize mortgage documents. This is putting lawyers and clients at unnecessary risk.”

The OBA and CBA met about this issue with the Canadian Bankers Association, who is presently working with its members to address the concern. See Scotiabank’s positive statement to this effect, available here.

STUDENTS

“Will the LSO consider delaying the articling recruitment timeline or varying the articling term for the upcoming year?”

The LSO has advised of two updates related to articling students:

  • for the 2021-22 licensing cycle, the articling recruitment timelines for all markets and employers will be deferred. Employers and students will be advised of the revised Recruitment Procedures and timelines by May 15, 2020 (see here for details) ; and,
  • for the 2020-21 licensing cycle, the minimum required length of articling placements will be temporarily reduced from ten months to eight months 2020 (see here for details).

“When will the LSO reschedule the March and June licensing examinations that were cancelled?” Students are concerned about certainty in preparing for examinations.”

The LSO is working to reschedule the March 2020 solicitor licensing examination to the week of July 19, 2020, with potential contingency dates in August and the early fall of 2020. The rescheduled March Exam would be held in Toronto and Ottawa. The LSO is also exploring online delivery options and will provide updates on the availability of an online examination in a timely manner so that candidates can plan their study time accordingly.

Regarding June 2020 examinations, the LSO is investigating the possibility of a barrister licensing exam during the week of August 23, 2020, and a solicitor licensing exam during the week of September 6, 2020 offered in the normal locations (i.e. Toronto, Ottawa, Windsor, London, and Thunder Bay). The LSO is working on contingency plans, including online delivery for the June exams if rescheduled sittings cannot proceed.

Note: Thanks to the OBA’s Student Executive, other students and law professors across the province, we have heard the concerns students have about their summer placements, articling positions, grades, and their future in the profession. In addition to raising students’ concerns with decision-makers, the OBA has developed a series of supports for its student members to help them through the next couple of months, including three free information sessions as part of the OBA Expert Edge program, including Tips for Academic Success in a Remote EnvironmentCOVID-19 and the Legal Job Market, and Retaining Your Exam PrepView more details and register at oba.org/edge.

“What plan is the LSO putting in place for the June licensing examinations to proceed? Students are concerned about needing to prepare for examinations and have them cancelled at the last minute.”

The LSO has cancelled the lawyer licensing examinations and the call to the Bar ceremonies previously scheduled to take place in June 2020.

For more information see the LSO: COVID-19 Response (Licensing & Accreditation Information FAQs).

Note: Thanks to the OBA’s Student Executive, other students and law professors across the province, we have heard the concerns students have about their summer placements, articling positions, grades, and their future in the profession. In addition to raising students’ concerns with decision-makers, the OBA has developed a series of supports for its student members to help them through the next couple of months, including three free information sessions as part of the OBA Expert Edge program, including Tips for Academic Success in a Remote EnvironmentCOVID-19 and the Legal Job Market, and Retaining Your Exam PrepView more details and register at oba.org/edge.

CIVIL LITIGATION

“If before the suspension of in-person proceedings I made a Motion to Amend (on consent) a previously issued Order, and I have not heard anything about the status from the Court, what steps can I take?”

Court staff are largely working from home and likely cannot access the previously filed paper copies. Counsel would then need to re-file the materials electronically to the email address specified in the respective regional notice to the profession. Counsel should indicate that the matter was filed previously in hard copy so court staff can make a note of this.

Are writs of seizure and sale being issued and filed during the suspension of in-court operations?”

There are two ways to issue a writ of seizure and sale at this time:

  1. Writs of seizure and sale may be issued at SCJ civil counters. Court counter services with the exception of Small Claims court remain open on a reduced schedule;
  1. However, since parties are being discouraged from physically attending court for non-urgent matters, parties may also mail in requisition documents to the registrar to have their writs issued without having to attend at the courthouse.

“Are writs of execution being issued and filed during the suspension of in-court operations?”

Counsel may be able to issue and file writs of executions in the Ontario Writs System (through Teranet) remotely pursuant to rules 60.07(1.1) and 60.20 of the Rules of Civil Procedure

“What is the responsibility of lawyers and parties with regards to civil matters during the suspension of in-court operations?”

The Superior Court of Justice has outlined that counsel and parties are expected to comply with existing orders and rules of procedures to bring cases closer to resolution where they can do so safely through virtual means; including complying with procedural timelines, producing documents, engaging in discoveries, attending pre-trials, case conferences and hearings, and responding to undertakings.
Where COVID-19 has prevented lawyers and parties from fulfilling their obligations, they should be prepared to explain to the Court why COVID-19 has rendered compliance not feasible.
This guidance also applies to self-represented parties.

“Are parties expected and permitted to advance, resolve or mediate matters by virtual means during the suspension of in-court operations?”

The Superior Court of Justice has called upon the cooperation of counsel and parties to engage in every effort to resolve matters.

For civil proceedings, this includes attendance at mediation – whether prescribed or not – where a mediator is willing to engage in a virtual mediation. 

For family proceedings, parties are encouraged to consider using Ministry-funded family mediation services to attempt to resolve their family law disputes during the period of reduced court operations, which services are now available virtually. 
For criminal proceedings, the Court encourages judicial pre-trials on matters that have been adjourned and is open to suggestions from counsel on creative ways to resolve, streamline or move matters forward by remote or alternate processes, such as applications in writing, oral submissions made remotely and the possibility of evidentiary hearings by remote processes in the appropriate circumstances.

“Do lawyers and parties need to obtain permission or consent for a hearing to proceed by virtual means in the Superior Court of Justice?”

No. Notwithstanding provisions in the Rules of Civil Procedure and the Family Law Rules, it is not necessary to obtain consent, or a court order, for a hearing to proceed by virtual means.

“When will the Superior Court of Justice resume in-person hearings?”

The Superior Court of Justice will not resume in-person hearings of any court matters until July 6, 2020, at the earliest.  In the interim, the SCJ will continue to hear matters virtually.

“Can the Superior Court of Justice provide guidance on commissioning of affidavits by virtual means?”

The Law Society of Ontario has interpreted the Commissioners for Taking Affidavits Act, as not requiring the lawyer to be in the physical presence of the client. 
Accordingly, where it is not possible to administer an oath in the physical presence of the deponent, a lawyer or paralegal may commission an affidavit by video.  The affidavit should state that it was commissioned by video conference.
Where it is not possible to commission an affidavit by video conference, 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.

“When can we expect that Judges will be able to deal with reserved decisions?”

CJ Morawetz has asked all SCJ judges and masters, during this pandemic, to release all decisions within the timeframe prescribed under the Courts of Justice Act.  In some instances, however, the release of a decision may compel parties to take certain steps which may not be possible during the pandemic.  Therefore, some decisions are being held back until it is possible for parties to comply with the terms of any decision.

“How can counsel make requests for SCJ chambers appointments and case conferences?” The civil list in Toronto is hearing chambers appointments and case conferences.
Requests for Chambers Appointments and other case conferences under Rule 50.13(1) may be sent to Torontochambersappointments@ontario.ca

“Since the courts are not dealing with non-urgent matters at present, will the Ministry suspend the issuance of administrative dismissal notices and dismissal orders?”

MAG has issued a direction to suspend the issuance of administrative dismissal notices and dismissal orders for:

  • SCJ Civil proceedings
  • Small Claims Court matters
  • OCJ family court proceedings
  • SCJ family court proceedings

The suspension applies to all courts across all regions.

“Are Courts requiring Confirmations for what are scheduled (but not proceeding) court dates to be served/filed?”

An order was made under the Emergency Management and Civil Protection Act, which suspends, as of March 16, 2020, all court rule and legislative timelines requiring a step to be taken in a civil matter. As a result, Confirmations for matters that have been adjourned to a new date are not required to be filed at this time.

“Should lawyers try to file documents for non-urgent matters even though all regular operations are suspended, or should they simply wait and file later, with a request for extension of time?”

For the health and safety of court staff, process servers, and the public, it is recommended that non-urgent matters should not be filed at this time. Court offices are remaining open for filing of urgent matters only until filings can be handled remotely.

“Are May and June trial sittings still to be planned/prepared for?

At this time, it is unclear whether May sittings will proceed. Matters are currently being adjourned to June sittings, so it is suggested that parties prepare for these hearings unless further updates indicate that the June sittings will also be postponed.

FAMILY LAW

“When an urgent motion or a case conference is being requested for a new matter where an Application has not yet been issued, should counsel email the Application, Form 35.1 and Financial Statement with the motion or case conference materials or do they still need to issue the Application at the courthouse first?

Alternatively, can counsel undertake to issue the Application and other documents when Court operations resume?”

 

 

With respect to the Superior Court of Justice:

  • Where possible, counsel are encouraged to send the Application first to the court to be issued by use of MAG’s generic email address for the particular location.  Materials relating to the urgent request should also be sent to the trial coordination email account with a notation that the application is in the process of being issued.  Where truly necessary, counsel may send only the urgent materials via the TC email address with a request that the matter be heard on the undertaking that the application will be issued at the first available opportunity.  Judges continue to have discretion to permit urgent requests to proceed on this basis.

With respect to the Ontario Court of Justice:

  • If there are no applications already before the court, 2 scenarios can occur:
    • either the moving party also wishes to bring an urgent motion; or
    • the moving party does not intend on bringing an urgent motion

If an urgent motion is to be brought,

    • then the Application and supporting documents need to be filed by email as per the directive; or
    • in the 14B motion, an order could be requested asking for the Application and supporting documents to be filed at a later date and along with a proposed filing deadline.

If an urgent motion is not to be brought, than the matter should not be filed at this time.  Note that if a case conference request is not an urgent/priority matter, the Application and supporting documents should not be filed at this time.

“Will uncontested divorces be processed? Many “consent” divorces are done on an uncontested basis because it is actually simpler than a consent divorce.”

Most regions are not processing uncontested or joint divorces at this time, subject to situations of urgency.  Local law associations may wish to seek clarity on this issue from their RSJs. Even in the limited regions where the judges have the capacity to review these requests during the period of suspended normal activity, it is unclear to what extent MAG and the Federal government can ensure that all necessary steps are completed before these applications can be reviewed by the court.

“For Central West specifically, the new practice direction requires parties to submit a 2 page letter requesting that an urgent matter be heard. For new matters, should the Application and Form 35.1 be sent with the 2 page letter, or should counsel simply indicate in the letter that it is a new matter and await direction from the judge? Additionally, should the letter be served on the other side? If so, does the other side have an opportunity to provide a 2 page letter of their own in response?”

For new matters, it is recommended that counsel include a copy of the application with this request and that it be served on the other party, unless relief is being sought on an ex parte basis.

“What does the expansion mean for conferences that were scheduled before the shutdown and have not yet been adjourned to a new date?  If the parties consent, will the court proceed with the conference (including a Trial Management Conference) by phone/video? What is the process for rescheduling case conferences (as opposed to scheduling new ones as outlined in the practice directions)?”

All conferences in family matters (not necessarily child protection matters) that are scheduled before June 2nd have been automatically rescheduled and will not proceed during this period without a new request to the court that fits within the expanded scope of activities.  Counsel should follow directions from each region regarding how those events will be rescheduled after regular operations resume. No direction has been provided yet for matters that have been scheduled from June 2nd onwards, although it is likely that at least some of the events that have been scheduled for early June will need to be rescheduled to facilitate rescheduling courts.

“Can applications be filed at the Superior Court of Justice in family matters?”

 

 

Yes, ideally through the generic MAG email accounts listed in the April 6 notices to the profession.  However, the Court is not encouraging the filing of regular applications at this time, just ones where requests are being made for relief during the period of suspended activity.  Joint or simple uncontested divorces can also be filed through MAG’s e-filing portal.

“Given significant concerns about COVID-19, what steps are being taken to ensure that courthouses are a safe environment for counsel and clients to attend?”

The Chief Justice has issued a directive regarding court operations for criminal and family matters, which are to go into effect in courthouses by 7 pm Friday, March 27. You can read the directive here.

“How should lawyers deal with court orders that impose filing deadlines in family law matters?”

FOR URGENT MATTERS:
As described in this SCJ Notice to the Profession, urgent filings may be filed by e-mail to the listed trial coordinator. See this Notice that that emails received at or after 4:30 pm will be addressed the following business day.

FOR NON-URGENT MATTERS:
As described in this SCJ Notice to the Profession, non-urgent filings may continue to occur at courthouses. However, where procedural rules or court orders require the regular filing of documents during this emergency period, and it becomes impossible to file at the courthouse or the courthouse is believed to be unsafe, parties can expect the Court to grant extensions of time once the Court’s normal operations resume. Parties must still comply with orders/rules requiring the service or delivery of documents as between parties.

“Must an existing order for access be strictly followed during the state of emergency, where families are being told to stay home?”

For urgent matters, filings may be filed by e-mail to the listed trial coordinator. See this Notice that that emails received at or after 4:30 pm will be addressed the following business day. Teleconferences and in some circumstances video conferences are being arranged for matters with approval of the local triage judge.

However, as some of these issues may not meet the court’s direction on urgency, lawyers are encouraged to consider other appropriate alternatives, e.g. Mediation and parenting coordination where an acceptable agreement cannot be reached between the parties. 

How do lawyers determine what qualifies as an “urgent” matter?

This SCJ Notice to the Profession, describes urgent and emergency matters in family and child protection matters.

“Can proposed Orders submitted pursuant to a Justice’s Endorsement with the consent of all parties be filed with the Court electronically or otherwise?”

For urgent matters, counsel are encouraged to file draft orders, which can be signed by the judge hearing the matter, and sent back to the parties signed electronically. Counsel should seek direction from the judge to ensure the timely issuance of the order.

“Can lawyers currently book conferences and motions even though part of the Court’s operations are suspended?”

Counsel are advised to contact their local trial coordination office regarding scheduling protocols in their region.

“Since the courts are not dealing with non-urgent matters at present, will the Ministry suspend the issuance of administrative dismissal notices and dismissal orders?”

MAG confirms it has issued a direction to court staff to suspend the issuance of administrative dismissal notices and dismissal orders for:

  • OCJ family court proceedings
  • SCJ family court proceedings
  • Small Claims Court matters
  • SCJ Civil proceedings

The suspension applies to all courts across all regions.

TRUSTS AND ESTATES LAW

“Will the Ministry amend the OIC to clarify that wills can be signed in counterpart to avoid the need to transmit a single paper document?”

The Lieutenant Governor in Council has amended the order under s. 7.0.2(4), of the Emergency Management and Civil Protection Act permitting wills and POAs to be witnessed virtually (through audio – visual communication) to allow these documents to be signed in counterpart from the date of the order. 
The OBA advocated for this change to allow for a more efficient manner of executing these documents without the risks associated with passing the document between parties.
You can find a copy of the order here.

“Will the Court give high priority to probate issues?”

These matters must be considered urgent, as set out in paragraphs 3 and 4 of this SCJ Notice to the Profession.

Are file applications such as an Application for Certificate of Appointment and “in chamber motions” still being processed?

At this time, the SCJ provincial policy is to only deal with “urgent” matters. However, the SCJ recognizes that this is an area where the court may be able to quickly expand the level of service it currently provides.

CRIMINAL LAW

“Are matters involving individuals who are not in custody proceeding?”

 

Accused who not in custody and have a criminal court appearance at the OCJ scheduled between March 16, 2020 and July 3, 2020 should not attend court. The OCJ will adjourn these matters, in the absence of the accused person, to a date approximately 10 weeks from the original date. Note the updated list of adjournment dates on the Court’s website: https://www.ontariocourts.ca/ocj/covid-19/criminal-list-adjournment/ .

However, the Court expects that the parties will take steps to move cases forward in ways that do not require a court appearance. Such steps include making arrangements for disclosure, and scheduling Crown pre-trials and judicial pre-trials. See this Notice, Section 4.3, for more details.

“What changes to impaired drives cases are included in the recent Notice?”

Sections 4.3(b) and 7.1 – Stream A impaired driving cases have been removed as an example of an urgent plea, because Ontario Regulation O. Reg. 46/20: Temporary Rules Governing Conduct Review Programs, made May 14, 2020, has temporarily extended the deadline for pleas to be entered to be eligible for the Stream A and Stream D ignition interlock programs.

What provisions are there for using e-signatures in SCJ criminal matters?

The Superior Court of Justice notice to the profession of April 2, 2020 regarding criminal operations allows for electronic signatures in criminal matters, and states that an electronic signature consists of “electronic information that identifies the signatory and the date and place of signing”, although this is not in reference to Affidavits. The SCJ is examining whether an e-signature can be placed on an Affidavit of Service, and encourages the bar to satisfy themselves of the requirements under the Commissioner for Taking Affidavits Act.

“What provisions are in place for inmates to make calls to counsel, to avoid inability to make collect calls to mobile phones?”

The Ministry of the Solicitor General has worked with its vendor to enhance the current Offender Management Telephone System (OTMS) to allow inmates to access both collect calls and “debit” calling:

  • The old system only allowed for collect calling, which does not allow for calls to cell phones.
  • Under the enhanced system, debit calling is enabled and funded by the ministry. Debit calling allows for calls to cell phones (live as of April 10).

The ministry will begin by providing inmates with $20 of calls and will monitor to determine whether this is adequate. Inmates will be able to use their funds as they see fit. This funding will allow for:

  • 50 local calls (no maximum length, however, the ministry’s policy currently limits phone calls at 20 minutes);
  • A 52-minute long-distance call; or
  • A combination of the above.

Please note the phone system currently allows for organizations to register with the ministry to by-pass security features, such as three-way calling, call transfers and the use of the keypad. This exemption is provided for the purpose of facilitating the transfer of offender calls from a receptionist or automated telephone attendant system to the intended call recipient. To enable this feature, the ministry requires a form to be filled out and sent to: MCS.TCS.OTMS@ontario.ca.

“Given significant concerns about COVID-19, what steps are being taken to ensure that courthouses are a safe environment for counsel and clients to attend?”

The Chief Justice has issued a directive regarding court operations for criminal and family matters, which are to go into effect in courthouses by 7 pm Friday, March 27. You can read the directive here.

BANKRUPTCY & INSOLVENCY

“There are many bankruptcy matters that are urgent, time sensitive or will result in significant repercussions. How will a party dealing with such a matter ensure apply to have such a matter heard by a Registrar in Bankruptcy?”

The masters sitting as Registrars in Bankruptcy will continue to hear and decide urgent and time sensitive matters by teleconference or video conference during the COVID-19 pandemic. The Registrars in Bankruptcy will also hear and decide matters where there are immediate and significant financial repercussions which may result if there is no judicial hearing. The party shall email the Bankruptcy Court office at toronto.bankruptcy@ontario.ca with details about a matter they wish to have heard urgently, identifying why the matter is urgent, time sensitive or will result in significant financial repercussions if there is no hearing. The party will also attach a completed request form.

“Would the Registrar in Bankruptcy be prepared to hear urgent matters as an e-hearing?”

If the Registrar in Bankruptcy accepts that a matter is to be heard urgently, the Bankruptcy Court office will direct the party to communicate by email with the Registrar who will hear the matter. The matter will proceed by teleconference or videoconference. The Bankruptcy Court anticipates having teleconference and videoconference lines available, some with recording capabilities. If required, the Registrar may ask counsel to provide videoconference facilities.

“There are also a number of matters that could be dealt with by Registrars in Bankruptcy in writing. Would the court consider allowing appropriate urgent and/or time sensitive matters to be hear in writing?”

The Registrars in Bankruptcy will hear appropriate urgent and time sensitive matters in writing. The types of matters that fall into the urgent or time sensitive matters include the following matters:

  • Motions to extend proposal periods where a Notice of Intention has been filed;
  • Motions to approve Division I proposals;
  • Motions to revive consumer proposals;
  • Motions seeking leave to file a completion or second consumer proposal;
  • Applications for bankrupt’s discharge following compliance with prior court discharge orders; and
  • Any other matter which the Registrars in their discretion determine is appropriate.

 Motions in writing shall be heard on Monday of each week during the COVID-19 pandemic, or as soon thereafter as the matter can be heard. If a party wishes a motion to be heard in writing, the party shall request a hearing date from the Bankruptcy Court office by emailing a completed request form to toronto.bankruptcy@ontario.ca.

LEGAL AID

“Will applicants be asked for information relating to their financial circumstances if financial eligibility for the services in question are being temporarily waived?”

LAO has advised that while financial eligibility requirements are temporarily waived for some services during the COVID-19 crisis, applicants will still be asked to provide information about their financial circumstances (earnings and assets) in order to complete their application for legal aid. This financial information will help LAO to assess and monitor its recent service accommodations; it will not affect eligibility for legal aid services for which financial eligibility has been temporarily waived.