What just happened? Following just over a week of remote working with many businesses and schools closed, many of us are looking back at just how much has changed. Our colleague has provided a helpful recap of the official court restrictions and guidelines across Canada in her article, "Updates From Canadian Courts In Response To COVID-19 Pandemic." This past week has shown us that limitation periods can be suspended, and that courts in Ontario can and will act quickly to ensure access to justice during this pandemic. The courts will insist that parties cooperate in order to resolve or postpone hearings, while continuing to make themselves available for urgent matters.
In this bulletin we will provide takeaways from the limited number of court hearings that took place since March 15, 2020 despite the many court restrictions.
Court Restrictions
Specifically the Ontario courts have taken steps to limit non-urgent matters, including the following:
- The Court of Appeal: Regularly scheduled appeals are suspended until April 3, 2020. Urgent appeals can be heard upon request, based either on the written materials or via videoconference/teleconference. Parties can also request that non-urgent appeals be heard in writing.
- Superior Court of Justice: For civil and family matters, only the following urgent and emergency matters shall be heard:
- Urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing;
- Outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding;
- Matters related to Public Health and Safety and COVID-19 (for example applications by the Chief Medical Officer of Health, or certain applications related to the Health Protection and Promotion Act);
- Family and child protection matters (such as urgent relief relating to the safety or well-being of a child, or dire issues regarding the parties' financial circumstances);
- Any other matter that the Court deems necessary and appropriate to hear on an urgent basis. These matters will be strictly limited.
- Ontario Court of Justice: For criminal matters, a reduced number of courtrooms will be used, focusing on in-custody accused persons. Most regular appearances will be adjourned by 10 weeks. The criminal courts will make full use of video and audio technology.
Endorsements and Decisions
Though not all civil in nature, many of the decisions and endorsements from this past week demonstrate how the courts have, in both substance and process, adapted to the rapidly changing times. These decisions include the following:
- Interim resolution strongly encouraged; videoconference hearing by "Skype, Microsoft teams or otherwise": March 20, 2020, Chu Resto YS Inc. v Greentower Service Inc., 2020 ONSC 1721 (CanLII) – Injunction motion had been scheduled for March 26, 2020 in relation to a lease termination. The applicant now sought an urgent motion for an interim injunction requiring the landlord to maintain the status quo (i.e. not re-letting the premises) pending the re-scheduling of its injunction motion. Instead, the Court scheduled a case conference to "seek an immediate, consensual, interim resolution focusing on the need for cooperation during these emergency times." At the case conference the landlord undertook to maintain the status quo (which had previously been suggested by the applicant), provided there was a schedule for the injunction motion with a specific hearing date (April 10, 2020 via "Skype or Microsoft Teams or otherwise"). This dispensed with the need for an urgent motion, with Justice Myers noting that "now is not the time for unnecessary process."
- Resolution encouraged: March 19, 2020 Ali v. Tariq, 2020 ONSC 1695 (CanLII) – This case was an application for an order setting aside a default judgment and a writ of execution. The applicant had sold her property and the sale was scheduled to close the next day. The applicant had offered to pay the sale proceeds into her lawyer's trust account in return for the respondent's agreement to lift the writ of execution to allow the sale to close, but the respondent had declined this offer. Justice Myers failed to "see any prejudice to either party by converting the land to cash rather than watching a sale disappear in a time of unprecedented market uncertainty." Justice Myers encouraged the parties to resolve the matter, failing which it could be heard the following day. He noted that the Notice to the Profession called upon counsel and clients to do their part during these urgent times, and specifically to cooperate and "engage in every effort to resolve matters." Justice Myers ordered service by email and dispensed with the need for a formal order to accommodate these difficult times.
- Lease forfeiture urgent; service by email acceptable: March 18, 2020 Oppong v. Desoro Holdings Inc., 2020 ONSC 1689 (CanLII) – The applicant was a commercial tenant (dispossessed) who sought relief from the forfeiture of the lease to her hair salon by the respondent landlord. In this decision Justice Myers determined that the matter was urgent within the meaning of the Notice to the Profession, and ordered that the hearing could proceed as originally scheduled on March 19, 2020, but by telephone conference. Justice Myers ordered the parties to serve any further material by email. Materials were to be in searchable pdf format, with cases hyperlinked to Canlii. Filing could take place electronically in the circumstances, with physical copies and affidavits of service to follow when the courthouse reopened.
- Transfer of debtor's assets affecting a real estate transaction urgent; service by email acceptable: Morris v. Onca, March 19, 2020 2020 ONSC 1690, and March 23, 2020, 2020 ONSC 1805 (CanLII) – Justice Myers considered whether to schedule a motion for contempt and other relief. A judgment creditor argued that she was at risk of defaulting on a real estate transaction with an impending closing and urgently needed her funds. She allegedly had evidence that the judgment debtors were actively moving assets abroad to avoid enforcement efforts. Justice Myers determined that the matter was time-sensitive and urgent within the meaning of the Notice to the Profession. A videoconference hearing was scheduled for the end of April. Regarding the exchange and filing of documents, Justice Myers instructed the parties to serve and file all relevant material by email in searchable PDF format with case law hyperlinked to CanLII. The parties were instructed to file a physical copy of all the materials that were delivered electronically, along with affidavits of service, when the Civil Motions Office reopened.
- Family matter urgent due to closing borders; March 18, 2020 Smith v. Sieger, 2020 ONSC 1681 (CanLII) – The court heard an urgent motion concerning an application for the immediate return of the parties' son from the United States, where he was attending an educational and therapeutic program. Justice Kaufman noted that the competing affidavits raised issues that would otherwise be important under normal circumstances. However, the matter was predicated upon the impact of the COVID-19 pandemic and the announcement of the imminent closure of the border between Canada and the United States. Accordingly, the court granted the relief requested by the applicant in its entirety to have the son return to Canada. Given the circumstances, the court dispensed with approval of the Order and ordered the filing office to expedite the entry.
- COVID-19 a material change in circumstances; need to socially distance and preserve medical resources considered: March 20, 2020 (Justice Copeland- R. v. J.S., 2020 ONSC 1710) – A bail review hearing was heard by teleconference. Justice Copeland determined that, among other things, the coronavirus situation amounted to a material change in circumstances for the purpose of the bail review. Justice Copeland noted "the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest." Justice Copeland was sure to note that this elevated risk was in no way a "failure of the correctional authorities to take appropriate steps. Rather, Justice Copeland noted the importance of social distancing and the need to preserve hospital resources.
- Application requiring buyout of shares not urgent, but motion for stay of proceedings time-sensitive and important enough to justify teleconference hearing: March 19, 2020 Hrvoic v. Hrvoic, 2020 ONSC 1703 and 2020 ONSC 1711 (CanLII) – This endorsement relates to an underlying application to require a buyout of the respondent's shares in family corporations, which arose in the context of family proceedings. The court critically noted that the parties had made the matter urgent through their unilateral and tactical maneuvers. On March 10, Justice Dow granted an adjournment, and ordered the respondent to repay money she had taken from the couple's line of credit. The respondent sought leave to appeal from the order, and urgently sought a stay pending appeal. The underlying litigation is not urgent. However, because the respondent had yet to comply with Justice Dow's order, the issue of whether the order ought to be stayed was both time-sensitive and important. The motion to stay the order was scheduled for teleconference hearing on March 30, 2020.
- Tenant's motion to be restored to a rental unit is urgent, affidavits could be sworn or affirmed during teleconference: Young v. CRC Self Help, 2020 ONSC 1715 (CanLII) – The Divisional Court heard an urgent motion brought by the appellant tenant to be restored to a rental unit. Under the circumstances, Justice Corbett informed counsel that they could arrange to have the affiant swear or affirm to the truth of the contents of the affidavit during the teleconference in lieu of filing a sworn affidavit. As with other recent decisions from the court, the endorsement was given the status of an order despite a formal order not being issued and entered by the court.
In almost all decisions from this past ten days it is noted that the Reasons for Decision are deemed to be an Order of the court, operative and enforceable without any need for a signed, entered, and formal order. [See 6791971 Canada Inc. v. Messica, 2020 ONSC 1642 (CanLII), Karpouzis v. Toronto (City of), 2020 ONSC 1640 (CanLII), Weins Canada Inc. v. Ensil Corporation, 2020 ONSC 1641 (CanLII), 1229965 Ontario Inc. v. York Condominium Corp. No. 263, 2020 ONSC 1639 (CanLII)].
It is clear from these early decisions that the Court will strongly encourage parties to cooperate and find workarounds or temporary solutions. The court is prepared to hear urgent matters where, for example, a property closing would be thwarted in this uncertain market, or if there is evidence that a judgment debtor's assets are being moved in order to avoid enforcement. In the criminal law context the Court has referred to COVID-19 as a material change in circumstances. The Court is also mindful of the importance of social distancing, the closing borders, and the need to preserve medical resources, if a decision could relate to these pressing issues.
What next?
As courts, governments, businesses and individuals adapt to the growing health crisis, it is important to have up-to-date information. The Ontario Superior Court of Justice twitter account (@SCJOntario_en) is a great resource for following the most significant steps taken by courts in Ontario. In addition to the various procedural changes, this account also highlighted two other significant COVID-19-related developments this past week: Chief Justice Morawetz' suspension of residential evictions during the COVID-19 pandemic, and Ontario's order under the Emergency Management and Civil Protection Act suspending limitation periods and procedural time periods retroactive to March 16, 2020.
Gowling WLG will continue to monitor changes to court processes and other trends as the situation with COVID-19 continues to evolve.
* The authors would like to thank student-at-law Valérie Pelchat for her capable assistance with this update.