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How are the Courts Handling Legal Cases During COVID-19?

March 8th, 2021 in V&H News

The four-term English Prime Minister and renowned statesman, William Gladstone, said that justice delayed is justice denied.  While that may be true when the wheels of justice are intentionally slowed to deny a party’s rights, it is certainly not emblematic of the Courts’ recent efforts to ensure that justice continues to be efficiently served in the face of the COVID-19 pandemic.  In this blog, we will review some of the COVID-19 adjustments implemented by the Ontario Superior Court of Justice (SCJ) to help facilitate access to justice.

Overview of SCJ Covid-19 Measures

On January 13, 2021, the SCJ confirmed the following measures:

  • Jury trials are suspended until May 3, 2021 (at the earliest) and no jury selection will occur during the suspension period.
  • All non-jury matters, such as motions, pre-trials, and trials, will proceed virtually (by telephone or videoconference) unless it is absolutely necessary for the matter to proceed in person.Virtual attendance will continue until the SCJ confirms otherwise.
  • A maximum of ten (10) people are permitted inside SCJ courtrooms for in-person matters.

Compliance with Timelines and Obligations

The SCJ expects that parties will comply with existing orders and relevant rules of procedure.  Such compliance means that parties must, where virtual options are available, comply with procedural timelines (set by the Rules of Civil Procedure, mutual agreement, order, etc.), produce documents, engage in examinations for discovery, attend pre-trials, case conferences, and hearings, and respond to undertakings.  In addition, the SCJ has encouraged parties to resolve matters through attendance at virtual mediation.

In circumstances where COVID-19 has prevented compliance with timelines and obligations, the affected parties (through their lawyers) must explain to the SCJ how COVID-19 has caused such non-compliance.

Commissioning, Serving, and Filing

Section 9 of the Commissioners for taking Affidavits Act requires that the person swearing to the truth of an affidavit make their oath, affirmation, or declaration in the presence of a commissioner of oaths, notary public, justice of the peace, or other officer or person administering the oath, affirmation, or declaration.  However, it is no longer necessary to be in the physical presence of the person swearing to the truth of the affidavit.  The SCJ confirmed that commissioning an affidavit via videoconference is permitted so long as the affidavit states that it was commissioned in such fashion.

Documents can now be served on another party via email without the requirement of consent.  So too can documents be electronically filed with the SCJ via email so long as the SCJ’s standard document naming protocols are followed.  When the SCJ returns to normal operations, paper copies of the documents must be filed and, if required, the related filing fees must be paid.

For further information regarding the SCJ’s COVID-19 policies and procedures, see the SCJ website: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/#1_Responsibilities_of_Lawyers_and_Parties_During_Suspension_of_In-Court_Operations_including_Mediation.

Conclusion

The current employment litigation environment can be complex and confusing. If you have questions about an employment litigation matter, please contact one of our employment and labour law experts and we will help you navigate your way to the best possible resolution.