We live in a Brave New World, where no aspect of our society is immune (pun intended) from the ravages of the COVID-19 pandemic. The justice system is no exception: it too is adapting to the new reality of social distancing. de VRIES LITIGATION LLP brings you this special Sunday blog to keep you abreast of the latest developments.

I previously blogged about the Ontario Court’s response to COVID-19. At that time, the courts were closed to all except urgent matters. On April 2, 2020, Chief Justice Morawetz and Regional Senior Justice Firestone of the Superior Court of Justice (SCJ) released comprehensive Notices to the Professions expanding the scope of hearings that will proceed. (Note that the Ontario-wide Notice to the Profession and the Toronto Notice to the Profession augment the earlier Notice to the Profession regarding urgent matters and do not replace it.)

Of particular importance to estates litigators, judges hearing civil matters will now hear Rule 7 motions (i.e. motions to approve a settlement on behalf of a party under disability) and motions on consent. Estate List judges will also be hearing “select” motions and applications (it is unclear what this means but hopefully more information will be released). The judges will also hear case management conferences, pre-trial conferences, and judicial settlement conferences. The hearings will proceed via “Zoom” or other videoconference facility. No matter over four hours will be heard.

Materials for urgent matters are to be sent via email directly to the court staff (at CSD.To.SCJCom@ontario.ca) and directly to the judge hearing the matter (the court staff will advise the parties of which judge is hearing the matter; see the March 16 Notice to the Profession). It is unclear whether this direction applies to the hearing of non-urgent matters of the Estates List, and – as such – I advise checking with the court staff and/or the judge’s judicial secretary before sending an email directly to the judge. Of course, if the hearing judge is not known, then the materials should only be sent to the court staff and they will arrange for delivery prior to the hearing.

When emailing documents to the court, facta should be in Word format. Books of authorities are not to be filed with the court. Instead, hyperlink the CanLII version of the cited case in your factum (for a shortcut, press control+k on a PC; apple+k on a mac). Where the case is not available on CanLII, then the parties may file a brief of case references that includes the headnote and a single page or brief portions of cases cited.

The following general changes are in effect:

• All matters will be heard via telephone or video conference (unless the parties can arrange for a remote hearing by other matters and a judge approves).
• The court has helped facilitate email service by dropping the requirement that consent must be obtained in order to serve a document via email.
• Court documents are to be filed via email (but counsel/parties are deemed to undertake that they will file the same material in paper and pay the appropriate fee once normal operations resume).
• The email subject line should contain the level of court (e.g.. “SCJ”), type of matter (e.g. “estates”), court file number (“NEW” if there is no court file number) and type of document (e.g. “motion record”).
• The body of the email should contain the court file number (again), short title of proceeding, list of attached documents, type of request and the lawyer’s name and contact information. Exhibits to an affidavit should be attached as separate documents and named as such.
• No email can be larger than 10 megabytes.
• Issuing and entering a formal order is not recommended and only orders relating to matters of urgency will be formally issued until normal operations resume. Note that an order is effective as soon as the judge makes the order not when a formal order is taken out.
• The requirement to gown is suspended. However, this is not a proverbial ‘Hawaiian shirt’ situation; counsel are expected to dress in appropriate business attire.
• The Court will seek to post online matters scheduled to be heard, so that the media can chose to hear or observe a proceeding.

This is a good first step for getting the Ontario Courts up and running! Hopefully, some of these changes will continue even after normal operations resume. The one caveat I have is using Zoom. While Zoom’s stock price has soared and it has attracted literally tens of millions of new uses, it is unclear how secure it is to hackers and how it is protecting our privacy.

While the Ontario Courts are doing their best to adapt to a COVID-19 world and roll out appropriate measures, parties and their counsel should consider private mediations and arbitrations in order to settle their disputes. The Estates Bar has many capable senior counsel (including our own Justin de Vries) who have the experience and expertise to resolve disputes and bring matters to a timely conclusion. All options should be considered in these extraordinary times.