The COVID-19 outbreak has changed the day-to-day practice of
litigation in Canada. While Canadian courts continue to adapt to
the temporary reality of the pandemic, most provinces have issued
guidelines to allow for remote proceedings. As the Canadian legal
system continues to demonstrate a willingness to conduct in-person
proceedings remotely, parties should navigate the e-practices that
may shape the future of litigating. A summary of the key ways to
advance or continue litigation during the pandemic are set out
below.
Virtual Dispute Resolution
Parties may consider alternative forms of dispute resolution to
move forward their litigation. Mediation and arbitration provide
parties with the flexibility to resolve all or part of their
disputes through the use of virtual hearing technology and document
sharing platforms. While these e-platforms are not new to the
practice, parties may have to adapt to a much more extensive use of
technology as an alternative to in-person examinations, or else
face delays that could reach into 2021 and beyond.
Ontario
A number of mediators and arbitrators are offering their
services remotely. For example, ADR Chambers and Arbitration Place
are hosting mediations and arbitrations via videoconference using
Zoom or conference calls. Zoom allows for breakout rooms amongst
participants. Some mediators have anecdotally reported easier, more
time-efficient and cost-efficient mediations using this platform
– and are considering sending lunch via delivery services to
fully replicate the mediation experience.
Some court reporting services in the Greater Toronto Area,
including Victory Verbatim, Network Reporting & Mediation and
Reportex Agencies are already offering remote services for
discoveries and mediations through programs such as Skype and Zoom.
These companies provide easy access to a virtual set-up, service
for scheduling, set-up for each session, trouble shooting and full
customer service during the proceeding. Other providers are likely
to follow and offer these remote services. When using these
technological services, parties and counsel must be mindful of the
implications and trade-offs that such services bring, including
cybersecurity issues and unwarranted interventions by opposing
counsel, as well as the necessity for paperless document
review.
Mediations by telephone were already reasonably common in
proceedings before certain administrative tribunals, such as the
Ontario Labour Relations Board and Human Rights Tribunal of
Ontario. For obvious reasons, parties will be making greater use of
teleconferencing for mediations and simple procedural hearings in
the coming weeks and months.
Alberta
On March 31, 2020, the Court of Queen’s Bench of Alberta
encouraged counsel and the public to access alternative dispute
resolution mechanisms to reduce delays in resolving civil and
commercial disputes in light of the of the backlog that will result
once the courts open to all hearings again.1
Effective March 30, 2020, the Court of Queen’s Bench will
process all Consent Orders resolving any matter over which the
Court has jurisdiction, including non-urgent matters and Consent
Orders to enforce Mediation or Arbitration Awards, by email or fax
in accordance with the Court’s Announcement here.
The Court of Appeal of Alberta has suspended appellate judicial
dispute resolution until July 2, 2020. Parties wishing to use this
service may book dates beginning at that time.
British Columbia
The British Columbia Commercial Arbitration Centre remains open
for normal operations and is accepting new cases for arbitration.
Most civil matters that are currently before the courts can be
submitted to arbitration for an award that can be enforced in
court.
British Columbia’s Civil Resolution Tribunal continues to
administer online resolution for small claims and condominium
disputes. The parties upload evidence, as well as submissions, and
the case is assigned to tribunal member. If an oral hearing is
required, it is done via Skype. Notably, while most limitation
periods in British Columbia are suspended, limitation periods and
other mandatory time periods continue to apply to CRT
proceedings.
Quebec
Quebec’s online PARLe mediation services for low-intensity
disputes continues to operate. Individual Quebec Superior Court
districts have issued their own restrictions. For example, the Montreal
Chambre Comerciale requires that parties deliver their
urgent applications by email directly to judges only and conduct
their hearings by telephone.
Best practices require parties to consider equipment needs,
including large screens, headphones to increase audio quality,
proper bandwidth support and webcams. It is useful for parties to
prepare witnesses to use available technology properly and attempt
test sessions. Parties should also include contingency plans
(including alternative telephone conferencing), advanced log-ins
and a common access point to view documents
electronically.
Virtual Courtroom Proceedings
Ontario
On March 15, 2020, the Ontario Superior Court of Justice
announced suspension of all but urgent and time-sensitive civil
motions effective March 17, 2020. In Wang v. 2426483 Ontario
Inc., the Court stressed that the urgency of a matter is not a
legal determination; parties should not send submissions regarding
the urgency of scheduled matters unless otherwise invited.2 Since that decision, effective April 6,
2020, the Court expanded remote hearings to select pre-trial
conferences, applications for approval of settlement and consent
motions in writing. On a May 13, 2020 notice, the Court noted that
in-person hearings of court matters will not resume until July 6,
2020 at the earliest. Jury selection for civil trials will also not
resume until September, 2020 at the earliest.
The Court has issued further guidance of the kinds of urgent
matters the Court shall hear. First, it will hear matters related
to public health and safety (including matters related to
COVID-19), such as applications under the Health Protection and
Promotion Act. Second, it will hear family and child
protection matters. Third, it will hear time-sensitive motions and
applications in civil and commercial list matters, where immediate
and significant financial repercussions may result of there is not
judicial hearing, and outstanding warrants issued in relation to a
Small Claims Court or Superior Court civil proceeding. The Court
will also hear any other matter that it deems necessary and
appropriate to hear on an urgent basis.
For matters that can be heard remotely, parties can send all
evidence, motion records and factums by email to the other parties
and the Motions Coordinator in searchable PDF. Emailed filings
cannot exceed 35MB. The Court is not accepting books of authorities
or statutory materials; all references to case law or statutory
materials in the parties’ factums or lists of authorities
should be hyperlinked to CanLII. Where counsel and parties deliver
materials by email, they undertake to file the same materials in
paper format, and pay the requisite filing fee, at the court
counter when regular court operations resume. Service is effective
on the date the email is sent or, if sent after 4:00 p.m., on the
next day.
The Court determines the manner of the hearing once it receives
the written material from the parties. Most urgent matters are
being dealt by telephone conference, although the presiding judge
has the discretion to direct a videoconference hearing using
technology such as Skype, Microsoft Teams, or otherwise. While
remote hearings are formal court proceedings that replace an
in-person attendance, the Court has replaced gowning requirements
with business wear. The Court has published detailed guidance on
appropriate technical set-up and appropriate etiquette during
virtual hearings here.
An Order has been made suspending limitation periods and
procedural deadlines in Ontario proceedings. The terms of the Order
apply retroactively to March 16, 2020. This means that any
limitation period or procedural period of time stopped running on
March 16, 2020. The suspension will last for the duration of the
state of emergency, which was declared under the Act on March 17,
2020 and is ongoing. Parties are also temporarily relieved from
complying with procedural deadlines, unless ordered
otherwise.
Alberta
The Alberta Court of Queen’s Bench has also suspended all
non-urgent hearings pursuant to Master Order #3 pronounced on April
21, 2020. Applicants must first make a request to bring the urgent
or emergency hearing at the Court of Queen’s Bench by
completing an online form.
On March 30, the Minister of Justice and Solicitor General
suspended limitation periods and periods of time within which any
step must be taken in any proceeding or intended proceeding, from
March 17 to June 1, 2020. The limitation period or period of time
resumes running on June 1, 2020 and the temporary suspension period
will not be counted. Please see the order to determine whether it
is applicable.3
As of March 30, 2020, counsel in Alberta may submit signed
Master and Justice consent orders for processing via email. All
COVID-19-related operational announcements from the Alberta Court
of Queen’s Bench can be found here.
All Provincial Court of Alberta (small claims) civil matters
that are scheduled to be heard prior to May 22, 2020 are adjourned
indefinitely. All COVID-19-related operational announcements from
the Provincial Court of Alberta can be found here.
The Alberta Court of Appeal continues to hear appeals,
applications, and motions but by videoconference or
audioconference. All COVID-19-related operational announcements
from the Alberta Court of Appeal can be found here. Further, the Alberta Court of Queen’s
Bench may ask for an email with unfiled materials in determining
the urgency of a hearing. Emailed materials cannot exceed 10 MB for
the Court and all references to case law or statutory materials
should be hyperlinked.
British Columbia
The Supreme Court of British Columbia continues to hear
essential and urgent matters during the pandemic. If a litigant
would like to have their essential or urgent matter heard, then
they must apply to the Court using a paper or online request form.
The Court has requested that parties use the online process where
possible.
Once the Court receives a request for an essential and urgent
matter, it will send an email response to the applicant for further
materials. The applicant is then required to send (i) an unfiled
draft application which identifies what orders the party is
seeking, and (ii) an unfiled draft affidavit which sets out the key
facts and describes the urgency. The respondent does not send any
materials at this time. A judge will review the request form,
unfiled application, and draft affidavit and determine if an urgent
hearing is required. If the judge determines that a hearing is
required, the Court will direct the applicant and respondent to
provide filed materials for the hearing. The Court will also
schedule a date for the hearing. Where possible, the parties will
appear by telephone or video-conference.
On April 16, the Supreme Court of British Columbia announced
further procedures to allow Telephone Conference Hearings for
matters that are not urgent or essential. During a TCH, parties may
address one disputed issue or bring forward issues on which they
have consent. The issue(s) must be suitable for determination by
telephone and on the basis of one affidavit per party. Affidavits
must be no longer than 10 pages each, inclusive of exhibits. The
TCH process is currently available only to parties who had matters
scheduled to proceed between March 19, 2020 and May 29, 2020.
In addition, a variety of civil desk order applications continue
to be processed by way of e-filing while regular court operations
are suspended. The Court also expanded the scope of applications
that can proceed by way of written submissions. While the state of
emergency is ongoing, the requirement in Rule 8-6 of the
Supreme Court Civil Rules that an order must be made at a
case planning conference before parties can make an application by
written submissions does not apply to applications that may be made
by written submissions and that are scheduled pursuant to the
Court’s remote processes.
Beginning May 4, 2020, the British Columbia Court of Appeal will
begin hearing all appeals – including those that are not
urgent – by videoconferencing using the Zoom platform, unless
otherwise directed. Parties will not be permitted to adjourn
appeals on the sole basis that they would prefer not to proceed by
videoconference. Litigants in appeals must complete the Court
Proceedings by Video Conference Form 14 days in advance of their hearing. The
Court has issued a step-by-step guide to the Virtual Conference Appeal
Hearings process, including directives about appropriate etiquette
and decorum. Appeals may also proceed in writing by approval of the
Court on consent request addressed to the Registrar.
The British Columbia Court of Appeal will also begin hearing all
chambers applications and Registrar’s appointments –
including those that are not urgent – by teleconference or in
writing. For new chambers applications or appointments, litigants
must file and serve materials required under the Court of
Appeal Act, Court of Appeal Rules, Criminal
Code, the Court of Appeal Criminal Rules and the
court’s Civil and Criminal Practice Directives.
While time limits continue to run for most matters relating to
the Builders Lien Act, mandatory limitation periods and
any other mandatory time periods that are statutorily established
are suspended from March 26, 2020 until the declared state of
emergency has been lifted, cancelled, or expires in British
Columbia. We think there are some questions around whether a
Minister has powers to make such an order suspending the effect of
a statute without specific legislative authority, including under
British Columbia’s Emergency Program Act (i.e. it is
unclear whether this is the type of statute that requires the
legislature to pass legislation, or whether the executive may make
an order without consulting the legislature). We recommend that
clients continue to file within statutory limitation periods. If
there are problems with legality, we expect the government to
retroactively fix the problem, as it is legislatively competent to
do so.
Quebec
The Quebec Court of Appeal allows parties to hearings before a
single judge to request a hearing by videoconference. Their notice
to this effect can be found here.
The Superior Court’s approach varies depending on the
individual courthouse. The Montreal Division has published its own
list of urgent proceedings, which can be found here. This list is up to date as of April 17,
2020, and is subject to change. Other proceedings are not being
heard at this time. The Quebec City Division, is permitting certain
contested proceedings, as long as the parties agree that the
hearing of said proceedings does not require witness examination,
and can instead be done via exchange of affidavits. The hearing
time cannot exceed 2 hours. This procedure is further limited to
certain types of proceedings, a full list of which can be found in
the latest notice from the Superior Court, Quebec
City Division, dated April 24, 2020.
The Court of Quebec has also scaled down its regular services.
The Civil Division has suspended all proceedings in its Regular
Division and its Small Claims Division, including trials. The Civil
Division is, however, maintaining certain judicial activities if
they are considered urgent or if they can take place by conference
call. The Court of Quebec’s list of urgent matters as of March
31, 2020, which is subject to change, can be found here.
A procedure has been put in place for each judicial district
within the province to allow a judge or special clerk to review an
application to decide if it qualifies as urgent in the
circumstances. The exact procedure differs for each judicial
district throughout Quebec and may be obtained by contacting the
appropriate court office.
On March 26, 2020, Quebec held its first virtual trial. All the
parties, the witnesses and the judge communicated via computers or
tablets. Large-scale adoption of this practice is yet to
follow.
Electronic Court Filing
Ontario
The Ontario Superior Court of Justice permits electronic filing
of documents through the Civil Claims Online Portal. On March 23,
2020, the Rules of Civil Procedure were amended to permit
the filing of a broader scope of documents. The amendments now
allow parties to file jury notices, a third, fourth or subsequent
party claim or a certificate of action under section 36 of the
Construction Act. The Civil Claims Online Portal can
be accessed here. Counsel and self-represented person
can communicate with court staff and trial coordinators by email
according to the procedures set out in each by each Court
region.
The Small Claims Court remains open for filings. However,
Ontario plaintiffs can continue to file their claims of $35,000 or
less electronically. Online claims can be made here.
Although the Ontario Court of Appeal does not have an e-filing
system, new filings can be sent by mail. Factums can continue to be
filed electronically in accordance to the Guidelines for Filing
Electronic Documents, which can be found here. The Federal Court has long encouraged
electronic filing of documents and is developing an e-Filing
Toolkit to assist parties shift from paper-based litigation
processes to electronic processes. The E-Filing portal can be found
here.
In addition, many tribunals, such as the Competition Tribunal
have long required electronic filing. The Human Rights Tribunal of
Ontario (HRTO) has long encouraged electronic filing and provided
parties with electronic Forms for completion. The Ontario Securities
Commission also permits electronic filing pursuant to its Rules
of Procedure and Forms and Practice
Guideline.
Where tribunals have not required electronic filing, they appear
to be adjusting to the circumstances. Effective March 25, 2020, the
Ontario Labour Relations Board (OLRB) is requiring all filings to be made electronically
through its e-filing process.
Alberta
The Master Order of April 21, 20204 states that all filing
deadlines under the Alberta Rules of Court are suspended
until May 31, 2020, with the important exception of those Rules
applicable to the commencement of proceedings including originating
applications. Details of the emailing filing process at the Alberta
Court of Queen’s Bench can be found here.
The Provincial Court of Alberta is only filing urgent/time
sensitive documents.
For the Alberta Court of Appeal, effective March 25, 2020,
unless otherwise directed by a case management officer or judge,
where an appeal has not yet been set for hearing, and the deadline
for the preparation and filing of appeal material falls on or prior
to May 4, 2020, the deadline is extended by two months. Otherwise,
all deadlines remain in effect and must be respected.
All documents at the Alberta Court of Appeal may be filed by fax
or email (in PDF format) as follows:
Note that the Alberta Court of Appeal is unable to accept
documents by email that exceed 100MB in a single transmission.
British Columbia
The Supreme Court of British Columbia has developed on online
filing process; the Court will only permit the paper process where
the online process is not possible. If the judge determines that a
hearing is required, the Court will schedule a date for the
hearing. Courthouse registries are no longer providing in-person
services during the suspension of the Court’s regular
operations. However, all courthouses will continue to receive
documents for civil matters. Requests for an urgent hearing should
be made using the online process where possible.
Urgent and non-urgent materials should be filed via BC’s
Court Services Online, or mailed to any Supreme Court Registry or
Fax Filing at a registry designated as a fax filing registry by
Supreme Court Civil Rule 23-2 or Supreme Court Family
Rule 22-3. Parties may also use a new secure drop box
available at Supreme Court registries. The drop box will be
accessible to the public from Monday to Friday, between 9 a.m. and
4 p.m. and will be emptied at the end of the day and processed
every 24 hours. The drop box will be monitored to ensure its
contents are secure during the day. Parties who submit materials
for filing using the drop box must include a telephone number or
email address where they can be reached. Registry staff will
contact parties only if their materials are not accepted for
filing.
Beginning May 4, 2020, the British Columbia Court of Appeal
mandates electronic filing through BC’s Court Services Online
for the vast majority of civil documents, with few exceptions:
motion books, reply books, appeal records, appeal books, and forms
of order submitted for entry cannot be electronically filed. The
Court will not accept filings by fax, mail or courier in civil
appeals, unless the document is one of the excepted documents that
cannot be electronically filed or submitted by email.
Note that BC’s Court Services Online and email platforms
have a size limit of 10MB for documents. This may require documents
to be sent in stages.
Quebec
The Court of Appeal of Quebec has launched a pilot e-filing
project. This project only applies to appeals as of right (as
opposed to appeals with leave) in civil matters. There are a number
of requirements for e-filing, including submitting paper versions
of all appeal documents in addition to the electronic versions.
Paper versions must be received by the Court of Appeal clerk within
five days of e-filing. A full list of conditions and further
information about the program can be found here.
As for the other courts, since most court offices are closed to
the public, filing of court materials is currently permitted by
mail. Entry to the Montreal courthouse is permitted to bailiffs
filing urgent proceedings. Further, on April 1, 2020, the Ministry
of Justice released an order allowing parties to file materials in
a different judicial district if their usual district is not able
to accept their proceeding. More information about this process can
be found here.
Virtual Commissioning of Affidavits
Ontario
According to the Law Society of Ontario, oaths and declarations
required to be taken “in the presence of” the
commissioner no longer require physical presence. We can now use
tools such as Skype, FaceTime or remote online notarizations
software to commission affidavits. Note, however, that while this
practice complies with a commissioner’s ethical obligations,
the Law Society of Ontario does not have jurisdiction to amend a
statutory law. It remains unclear whether legislators will amend
the Commissioners for Taking Affidavits Act to help
clarify the resulting ambiguity in the legislation.
Alberta
According to a Notice to the Profession and Public by the Court
of Queen’s Bench of Alberta, affidavits may be sworn over video
as long as the affidavit includes a paragraph describing that the
deponent was not physically present before the commissioner, but
was linked with the commissioner utilizing video technology and
that the process described here for remote commissioning of affidavits
was utilized. Note that a commissioner is required to sign a
certificate stating that the commissioner was satisfied that the
process was necessary because it was impossible or unsafe, for
medical reasons, for the deponent and the commissioner to be
physically present together.
British Columbia
The British Columbia Provincial Court, Supreme Court and Court
of Appeal have all issued guidance for commissioning affidavits.
Affidavits may be sworn over video as long as the affidavit
includes a paragraph describing that the deponent was not
physically present before the commissioner, but was linked with the
commissioner utilizing video technology. Like Alberta, all levels
of court also require a certificate stating that the commissioner
was satisfied that the process was necessary because it was
impossible or unsafe, for medical reasons, for the deponent and the
commissioner to be physically present together.
Quebec
The Quebec Bar has published new guidelines for long-distance swearing of
affidavits. Affidavits no longer have to be commissioned in
person. Any method is acceptable as long as:
- the signature is identifiable,
- the signatory and commissioner can
see and hear each other, - both signatory and commissioner can
see the same document, and - confidentiality/privilege is
preserved.
The preferred method for commissioning affidavits is over
videoconference. The affiant should sign the affidavit on video so
the commissioner sees it. The affiant should then scan and send the
signed document to the commissioner, who will stamp or otherwise
attest it.
Footnotes
1. Alternative Dispute Resolution, Consent Orders and
Applications to Enforce Arbitration Awards..
2. Wang v 2426483 Ontario Inc., 2020 ONSC
2040 at para 14, 2020 CarswellOnt 4540.
3. Ministerial Order 27/2020 [Justice and Solicitor
General.
4. Amended Master Order #3 – Relating to Court’s
Response to the COVID-19 Virus.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
© McMillan LLP 2019
