We must all do our part to help fight the spread of COVID-19, including frequent hand washing and social distancing. As of this Tuesday, the Ontario civil courts (including the estates list) are doing their part by suspending regular operations.
In the interim, the court will be hearing urgent and time-sensitive motions and applications where “immediate and significant financial repercussions may result if there is no judicial hearing.” A hearing may be conducted in writing, by teleconference, videoconference or – in rare circumstances – in person. The Ministry of the Attorney General, the court staff and the parties will coordinate to find a safe physical location for any in person hearing.
For an urgent proceeding, materials should be filed via email (not to exceed 10 megabytes). A book of authorities will not be necessary if caselaw and other source material can be hyperlinked in the factum. An unsworn affidavit can be delivered (if it is not possible for the affiant to swear the affidavit) if the affiant can participate in a tele- or video- conference to swear or affirm the affidavit. A triage judge will determine if the matter should be heard and, if so, how. The parties may be required to provide the teleconferencing as the court has a limited supply.
It is clear that the court buildings cannot remain open: it is too simply dangerous to have that many people that close together. However, in the coming weeks as a plan is developed to work to reopen the courts, hopefully consideration is given to hear non-urgent matters and consent orders in writing or tele-/video- conference as well as allowing for consent orders The Estates List is partially suited to this matter as it (and the Commercial List) have long been on the cutting edge of utilizing both technology and best practices. It is ideally suited to be a source of creative solutions on how to keep the court system running without a physical attendance. Case management of files is not uncommon of the estates list and judges who are thus intimately knowledgeable about the various aspects of the case are in an even better position to decide issues and move matters forward on teleconferences and through other streamlined procedures.
Dealing with the current court suspension also brings to mind the One Judge Pilot Program and what lessons we can all take from it. This pilot program was established approximately a year ago and is halfway through its lifespan. Under this model, one judge will hear all interlocutory matters and the final trial in an action. This trial is scheduled at a relativity early stage of the proceeding by the pilot judge. No formal motions are scheduled without the approval of the pilot judge. Instead, informal procedures are to be used including teleconferences. Hopefully, the relevant decision-makers will consult with Estate list judges and judges participating in this pilot program in order to determine best practices and practical solutions on how interlocutory matters can be resolved in the period before the physical courts reopen.