Truths and Rumours During COVID-19 Crisis
The biggest problem writing about what lawyers should know during COVID-19 is that most of the information comes from social media, group email chains, or what you hear through the grape vine. There are also so many Notices it is hard to keep up!
Just like an affidavit – Where I make statements based on information provided by third parties, I will state the source of such information. If I am not sure of the source – I will list this under rumours. If from a credible source, these will be listed as truths with link if needed.
I do focus on the Superior Court – but here are links to the OCJ, Federal Court, Court of Appeal, and Supreme Court.
So without further adieu, let’s begin:
Where can I find the Notice to the Profession for Superior Court?
The Ontario Superior Court Website in “What’s New.”
When will the Ontario Superior Court open?
Truth – The Superior Court has suspended hearings but is not closed. It is still “open.” According to the Notice to the Profession, effective May 19, 2020: The Ontario Superior Court of Justice suspended regular operations as of Tuesday, March 17, 2020. Small Claims court proceedings are suspended.
“Given the on-going public health situation due to COVID-19 and the uncertainty as to when it will be safe to return to courthouses, the SCJ:
- Will not resume in-person hearings of any court matters until July 6, 2020, at the earliest. It will, however, continue to hear matters virtually, and expects to shortly further expand the scope of matters that will be heard virtually.
- Will not recommence criminal or civil jury selection or jury trials until September, 2020, at the earliest.”
When will my matter be re-scheduled?
Truth – Appears to depend on the matter and location of court.
If it is a non-urgent matter the Superior Court has announced that starting April 6, 2020, they will start hearing other matters (in addition to “urgent” matters). The information appears to differ based on the region of the court.
The PDF Toronto Estate List is pasted below and click here for the link to the commercial list.
Toronto Estate List – matters scheduled after March 15, 2020 are adjourned until after June 1, 2020 and not currently being rescheduled. A further update to Changes to the Commercial List was made on May 5, 2020 with general remarks and suggested protocols found here.
Toronto Commercial List – same as above, rescheduled after June 1, 2020, but the courts will contact counsel to indicate rescheduling.
Rumour – It seems likely that the courts will be adjourning until at least after July 6, 2020 if your matter doesn’t fall into the “what they are willing to hear after April 6, 2020”.
Can I still file my materials?
Truth – According to the Consolidated Notice for Procedures Governing Civil and Family matters: “For matters that are not “urgent” or have not been identified to be dealt with in a Region’s Notice, counsel and parties are discouraged from physically attending courthouses to file documents in person. Parties should file Claims or Statements of Claims, Statements of Defence or certain other civil Pleadings through the Civil Claims Online Portal for Superior Court civil matters. Plaintiff’s Claims in Small Claims Court matters should be filed through the Small Claims Court online filing service. Limited family proceedings can also be filed electronically through the Ministry of the Attorney General’s website for filing divorce applications.”
The courthouses seem open – but ask you not to go in. They want you to file online. Check your region.
Toronto Estates List – materials can be filed and these include: Notices of Application will be issued but with a date “to be fixed by Registrar,” Notices of Objection, probate/Certificate of Appointment Applications, motions for consent, ex parte orders.
Rumour – Toronto Estate List asking you to serve by regular mail. Some have had success filing in person.
Some courts seem to be accepting by regular mail, others file online, others say their limited hours to receive filings are for urgent matters only if approved by a judge. Best way to move forward would be to email your court co-ordinator.
Can I get an Application Date?
Truth – As stated above, Notices of Application will be issued but with a date “to be fixed by Registrar”
Rumour – It is unknown whether the courts will reach out to Applicants to set a date or if the Applicants are expected to contact the court to seek a date. It is expected these dates will be very far in the future.
Why have there been so many notices?
Truth – Things are evolving quickly. Here is the Notices no longer in effect.
What about limitation periods?
Truth – in an unprecedented move, limitation periods are suspended and retroactive to Monday, March 16, 2020. Click here for the link. Please note: the Construction Act is exempt.
Can a judge still sign a consent order?
Truth – appears yes, though depends on your court region and matter.
Rumour – It seems to be that if you email the trial co-ordinator, they will point you in the right direction. The concern is that it may require drafting a whole motion record just to get a draft order signed, but it seems to depend on what the trial co-ordinator says, the court, and the matter.
What matters will be heard?
Truth – Your matter must still be URGENT! Or fall under the accepted matters being heard. The process for your matter to be heard, again depends on your court and this part is detailed very clearly on the Notice. A helpful article for what is deemed urgent can be found here.
As per the Responsibilities of Lawyers and Parties: “During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent they can safely do so through virtual means. This guidance also applies to self-represented parties.
For example, where it is possible through virtual means to comply with procedural timelines, produce documents, engage in discoveries, attend pre-trials, case conferences and hearings, and respond to undertakings, those steps should be pursued. Where COVID-19 has prevented lawyers and parties from fulfilling their obligations, they should be prepared to explain to the Court why COVID-19 has rendered compliance not feasible.”
Rumour – The courts appear to be more willing to hear general matters but it appears there is still a triage judge who approves what will be heard. Urgent still means urgent, some examples: if someone is dying, will be harmed or put in harm, will become homeless, serious financial harm or a matter directly related to COVID-19. You usually need to explain to the trial co-ordinator why your matter should be heard.
Can I commission an affidavit without being in the same room?
Truth – Yes. The Law Society has issued a helpful Q&A link here.
The best practice is to be in the same room, but as a result of COVID-19, the requirement that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” is not requiring the lawyer or paralegal to be in the physical presence of the client. Commissioning via video conference will be permitted. It is up to the lawyer to manage these risks.
What about Wills?
Under s. 7.0.2(4), of the Emergency Management and Civil Protection Act, the Lieutenant Governor in Council made an order permitting virtual witnessing for wills and powers of attorney provided that at least one person who is providing the service as a witness is a licensee pursuant to the Law Society Act.
Executions of a will is allowed in counterparts: “Identical copies of the will in counterpart, which shall together constitute the will.”
Can I file an unsworn documents?
Truth: For urgent matters, the notice states that unsworn affidavits may be delivered but the affiant must be able to participate by phone/videoconference to swear/affirm affidavit.
Rumour: It seems for non-urgent matters, lawyers seem to be accepting a draft of an unsworn affidavit from the lawyer stating their client has reviewed the affidavit, confirms its truth and their client to swear the affidavit at a later time. However, see above, affidavits during this time may be commissioned without being in the physical presence.
What about identifying and verifying clients?
Truth – There is a difference between identifying and verifying clients.
There is no requirement to meet with a client face-to-face to identify the client.
Identification is for the purposes of taking instructions from your client and can be done over the phone, email, or video conference.
Verification is for the purpose of payment, receipt, or transfer of funds and requires face-to-face by you or another commissioner/guarantor to swear an attestation as to their identity. This is all on the LSO link.
Can I serve parties by email now?
Truth – The Rules of Civil Procedure are still in effect but lawyers are expected to act reasonably. A judge would likely think counsel’s refusal to accept service via email during this pandemic is not acting reasonably.
In Ali v Taraq, 2020 ONSC 1695 (Canlii) dated March 19, 2020, Justice Myers allowed service to be made by email as effective service when sent, in his endorsement, without requiring a formal order or motion for this issue.
Can I serve the Crown by email, such as the PGT?
Truth – Yes. There has been an order changing how documents are served on the Crown, Ministers of the Crown including the Attorney General of Ontario, the Children’s Lawyer, the Public Guardian and Trustee and the Director of the Family Responsibility Office has been issued under the Emergency Management and Civil Protection Act.
Effective immediately, the following documents for any civil (non-criminal) proceeding, administrative proceeding or intended proceeding must be served by email until further notice to:
- [email protected] for originating processes (e.g., a notice of claim, a statement of claim, a notice of application or other document that initiates a proceeding) to be served on the Crown or any Minister of the Crown including the Attorney General of Ontario
- [email protected] for a Notice of Constitutional Question to be served on the Attorney General of Ontario
- [email protected] for any legal document required to be served on the Director of the Family Responsibility Office
- [email protected] for matters required to be served on the Children’s Lawyer including service on any other person where a document must be left with the Children’s Lawyer
- [email protected] for matters required to be served on the Office of the Public Guardian and Trustee including service on any other person where a document must be left with the Public Guardian and Trustee
- the email address of the counsel of record for the Crown, Minister, Family Responsibility Office, Children’s Lawyer or Public Guardian and Trustee in any ongoing proceedings (for any documents other than originating processes)
Emails should less than 10MB and must include the sender’s name, address, telephone number and email address.
Order is below.
Are evictions suspended?
Truth – Eviction orders have been temporarily suspended on March 19, 2020 until further notice. “Tribunals Ontario will not issue any new eviction orders until further notice.”
What else should I do or know?
Truth – Follow your court on twitter – the Superior Court of Ontario handle is @SCJOntario_en
There are some great online programs offered by the community (organizations like TLA, OBA, and Advocates Society) to get your CPD hours.
I’m doing virtual coffee meetings – if you want to chat on zoom, feel free to reach out!
Stay home. Stay safe.
I’m sure I’ll be updating you soon.
Estate List Notice:
Changes to Toronto Region Estates List Operations in Light of COVID-19, March 23, 2020
- In accordance with the Notice to the Profession issued by Chief Justice Morawetz, March 15, 2020, all regular matters which have been scheduled and are not urgent, or time sensitive, are adjourned to after June 1, 2020 and are not currently being rescheduled, subject to any further direction from the court.
- The judges of the Estates List will continue to hear and decide urgent and time sensitive matters. The procedure for urgent matters on the Estates List is the same as the procedure for urgent matters on the Commercial List and will be in accordance with the procedure set out in the Changes to Commercial List Operations in Light of COVID-19 March 16, 2020 advisory, with necessary changes. For greater certainty, all urgent requests and materials on the Estates List should be sent to the Commercial List trial coordinator at [email protected]
- There is no change to the usual procedure for filing materials in matters that are to be considered by the court in writing, including motions for consent orders and ex parte orders. Materials for matters to be heard in writing may still be filed at the Estates Office, subject to any further direction of the court.
- Applications for Certificates of Appointment are still being accepted and processed by the Estate Office.
- Notices of Application (Forms 14E, 74.44, and 75.5) will continue to be issued by the Estates Office but instead of fixing a return date the Notice of Application shall indicate that the matter will be heard: “on a date to be fixed by the Registrar.”
- Notices of Objections (Form 75.1) may be filed in the Estates Office as usual.
Order for Service via Email to Crown