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.

“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.