Effective as of January 1, 2021, Ontario Regulation 689/20 (“Regulation”) substantially amended the Rules of Civil Procedure (“Rules”). In many ways, the changes to the Rules reflect the reality of litigation in Ontario since the onset of the COVID-19 Pandemic (“Pandemic”) and focus on a technological shift in the nature of litigation, which was both necessary, and needed. Not only do the changes affect litigation under the Construction Act but they will also have an impact on the prompt payment and adjudication provisions therein.
Key highlights of some of the amendments and their impact on proceedings under the Construction Act are discussed in more detail below.
Video Conferencing and Teleconferencing
Parties can now agree to how a hearing, mediation or discovery will be heard: in person, by videoconference, or by teleconference. To the extent that a party opposes the proposed manner of hearing it is required to file a Notice of Objection (new Form 1A) and must do so before the earlier of 10 days after the document, which specifies the method of attendance was served, or 7 days before the hearing or step. Where the method of hearing is challenged, the court will make an order at a case conference in this regard. The new Rules set out factors that the court must consider in making its determination in respect of the manner of hearing (for example, the importance of the evidence, effect on determining credibility, and importance of observing a witnesses demeanour). However, no such enumerated factors that must be considered by the court are set out with respect to examination for discovery.
Construction lien proceedings can often be document intensive undertakings with thousands and thousands of documents produced by all parties – even in relatively small disputes. It may well be that certain matters are not properly suited for proceeding by way of a virtual platform. The Rules provide the court sufficient discretion to determine whether the hearing or discovery ought to proceed by way of video conference, but parties ought to be aware that the Rules now build in the potential for cost consequences where a party unreasonably objects to proceeding by videoconference.