This page is designed to keep track of COVID-19 related procedural changes to court and ADR procedures. We're going to start with Canadian courts and add more information as we are able to. We're going to keep it very simple, offering blog-style updates with links to court/provider websites and the newest information on top. The likely length of this global emergency could lead to profound change in how institutions operate, including how courts and ADR providers operate. This page aims to document the beginnings of that change. If you have an update, or want to contribute analysis, please e-mail email@example.com.
We will make an effort to keep the information on this page up to date, but we're a small team. Nothing on this page constitutes legal advice. You need to check with the relevant court (follow the links) to see what is going on.Follow these links to get to posts on: Canadian courts Courts outside of Canada
Examinations for discovery during COVID-19
Date: December 29, 20202
Author: Amy Zhang, Associate, Lerners LLP
At the onset of the pandemic, many reporting centres were forced to close, delaying examinations for discovery, a key component of the litigation process. As the pandemic continued, these reporting centres adapted, providing virtual options to litigants for e-discoveries by way of Zoom or WebX. Instead of having parties join together physically in a conference room with a court reporter transcribing the oral evidence, all parties can now participate via a web link.
Running an e-examination does take getting used to and there are some factors that should be accounted for in advance. For example, it would be best to have multiple monitors. While monitors may seem like a trivial consideration, looking at the deponent is important in assessing credibility, and it’s difficult with one monitor, trying to maneuver between looking at the defendant, referencing the affidavit of documents and also typing up notes. It would also be worthwhile to double check internet issues for litigants ahead of time. As parties are now being examined at home, with various strengths of internet service, there can be interruptions in the connection which result in unclear and interrupted answers, making an accurate transcript difficult to be produced. Confidentiality is also an issue for virtual examinations. Clients may be sharing their homes with spouses, children and roommates, and ought to be advised ahead of time that this is an important legal proceeding that should be private. This advice is to ensure that the integrity of the evidence can be preserved.
In-person discoveries are still available if parties prefer that option. I have participated in a discovery at a reporting centre since the onset of the pandemic, and parties attending on-site were put into a large conference room to allow as much social distancing as possible. Masks were not required in the rooms, but were required in the common areas. However, even with many reporting centres available for in-person discoveries, most clients and lawyers tend to opt for a virtual discovery to reduce the chances of contracting the Covid-19 virus.
The courts have advocated for the use of technology to ensure matters are brought to resolution without further delays caused by the pandemic. However, there is still need for top-down guidance on the nuisances of virtual discoveries. For now, lawyers are mostly left to themselves to figure out how discoveries can proceed in a way that does not prejudice any parties involved.
Tax Court of Canada
Author: Simran Oberoi, JD 2021, Faculty of Law, Thompson Rivers University
On March 13, 2020, the Tax Court of Canada (the “TCC”) first cancelled all sittings and conference calls due to the COVID-19 pandemic. The TCC was subsequently closed until July 6, 2020.
In a Notice to the Public and the Profession issued July 8, 2020, the TCC confirmed it would reopen for business on July 6, 2020 (apart from the Hamilton Court Registry office), with sittings to resume on July 20, 2020. With the exceptions of those outside major centres, sittings and conference calls scheduled as of July 8, 2020 are to proceed as scheduled.
While the TCC originally suspended the computation of time with respect to matters brought before the TCC for a total of 173 days, with the coming of force of the Time Limits and Other Periods Act (COVID-19) on July 27, 2020, the computation of time has now been suspended for 185 days: March 13, 2020 – September 13, 2020, inclusively, are excluded from the computation of time to bring a matter forward or to file a response with the TCC. This suspension of time also applies to the computation of time under the Tax Court of Canada Rules (General Procedure), all Rules under the Tax Court of Canada Act that govern the conduct of matters under the TCC’s jurisdiction (pursuant to section 12 of the Tax Court of Canada Act), and any Orders or Directions issued by the TCC on or before March 13, 2020 (https://www.tcc-cci.gc.ca/tcc-cci/pdf/Notice%20to%20the%20Public%20and%20Profession-%20August%2014,%202020-EN.pdf).
In its Notice to the Public and the Profession dated August 14, 2020, the TCC indicated it would not be issuing Orders for new timetables with adjusted dates. Rather, parties must adjust any timetable issued by the TCC before March 13, 2020 to add 185 days to all dates scheduled in the timetable, and to apply to the Court if the adjusted dates are no longer suitable to the parties.
In an attempt to reduce the amount of Applications for Extension of Time to File Notices of Appeal, the TCC had originally deemed all Notices of Appeal filed after the statutory deadline during March 16, 2020 – September 4, 2020 as including an Application for Extension of Time brought on the exceptional grounds that the applicant was prevented from filing within the deadline due to the COVID-19 pandemic and the TCC’s closure. However, since the Time Limits and Other Periods Act (COVID-19) came into force, the Notices will no longer have been considered to be filed after the statutory deadline. Consequently, an Application for Extension of Time will no longer be deemed to have been included with the relevant Notices (https://www.tcc-cci.gc.ca/tcc-cci_Eng/Media/Notices.html).
In some cases, the TCC will also conduct case management conferences, status hearings, pre-trial conferences, motions without witnesses, and applications without witnesses through online or teleconference proceedings so as to expedite the litigation process where it can (https://www.tcc-cci.gc.ca/tcc-cci/pdf/Notice%20to%20the%20Public%20and%20the%20Profession-%20July%208,%202020-EN.pdf).
Questions for August
Author: Alyssa King
Courts are continuing to resume normal operations and refine remote procedures. Courts of Appeal, often slower to get remote hearings going, have published procedures in Ontario, British Columbia, and Yukon.
Long term issues:
Jury trials: Common law jurisdictions have been hard pressed to figure out a solution to the problem of trial by jury during an airborne pandemic. England and Wales tried bringing jurors back in May despite the risk. Texas experimented with a remote civil jury. Technically the process was an arbitration, but it was led by a Texas judge. Florida went further, creating a remote civil jury pilot project and held its first online jury selection in early July. The Chief Justice of the Supreme Court of Canada has suggested further reducing our reliance on juries. This solution is the simplest and the most likely to gain traction, with civil juries and juries in minor criminal cases the most likely to be cut.
If we are still months away from being able to hold in person jury trials safely, it is hard to ask parties to wait. In BC, which has done quite well containing the pandemic, criminal juries are set to resume in September, but civil juries will not be available until January 2021. Criminal defendants’ lives cannot be kept in limbo. Civil parties want to move on. They are already facing additional pressure to settle, why not consent to trial by judge alone? As court services do resume in many places, judges and prosecutors are facing a daunting backlog and defendants with rights to a speedy trial. Jury trials take more time than judge trials.
The argument for getting rid of juries also relates to the perceived advantages of judges as factfinders. The argument is that greater judicial management will make the process less time and resource intensive. For civil cases, not using juries could allow a discontinuous procedure, in which trials require less extensive preparation because the judge and the parties can narrow the issues and judges can ask for more information when and if it becomes necessary. One need not be so fastidious about evidence in front of a judge, who can be expected to know what weight to give it and can dispense with a host of other formalities by consent. Moreover, juries are often portrayed as unpredictable. Judges and juries can be prejudiced, but at least judges have training in setting aside irrelevant information.
Yet giving up juries comes with its own set of costs. Judges will still have to do the work of fact finding, so trials might not suddenly speed up. Judges trained in common law systems are unlikely to suddenly adopt the case management style of civil law counterparts. Moreover, as Catherine Bennett argued in the Guardian, one of the greatest obstacles to doing away with juries is lack of judicial diversity. At a time of Black Lives Matter protests, this lack of diversity poses a stark challenge for the legitimacy of a move away from juries.
Electronic documents: Electronic dockets would make it easier for the public to access information. Hopefully, the pandemic can provide a push in this direction, but systems built quickly and of necessity may not work as courts have to handle a higher volume of cases.
Permanent remote hearings: Even as they resume in person services, courts can still offer remote services to those who want them. Last week, the Ontario Superior Court promulgated a notice acknowledging that some litigants may have individual reasons for not wanting to go to court in person https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/in-court-hearings/. This notice focuses on health issues, but for other parties, distance has always been a problem. Now that courts have procedures for remote hearings in place, perhaps they can make them a part of routine practice. One obvious application would be to bail hearings in remote areas. With relatively cheap and readily available technology—a computer or a smartphone—courts can hold these hearings remotely and spare defendants from having to wait in jail until a judge can travel by plane. Remote bail has drawbacks. In the US immigration setting, remote hearings have been shown to have worse procedural outcomes for respondents and be more likely to result in final orders of removal. They thus create some risk that defendants may not be able to make their case for bail as effectively as they could in person. Thus, there is a good argument that remote hearings should require consent and should be combined with reforms aimed at reducing reliance on a system of cash bail.
Brief July Update
July 9, 2020
Author: Carlos Faustino
Queen’s Bench: Some hearing lists will now be heard remotely. https://albertacourts.ca/qb/court-operations-schedules/pandemic-operations/COVID19-Announcements/resumption-of-family-civil-and-masters-hearing-lists-remotely-province-wide
Supreme Court (As of June 30): Small procedural adjustments in accordance with resumption of court filings. https://www.bccourts.ca/supreme_court/#current
Provincial Court: Directions for resumption of court operations revised.
Newfoundland and Labrador
Provincial Court: Time extended by court order. https://court.nl.ca/provincial/Extension_of_Time_Order_June26.pdf
Territorial Court: COVID-19 Directive Updated.
Superior Court of Justice: Divisional Court protocols updated. https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-div-ct-june-2020/
June 26, 2020
Authors: Alyssa King and Carlos Faustino
It's been awhile since we published a comprehensive update on Canadian courts and, well, there's a lot going on.
Queen’s Bench: Non-urgent cases after June 29 will be heard as scheduled. https://www.albertacourts.ca/qb/court-operations-schedules/pandemic-operations
Some in-person trials are now possible in courtrooms with plexiglass shields. Additionally, the courts will introduce e-filing and electronic dockets. https://www.albertacourts.ca/ca/publications/announcements/return-to-more-regular-sittings-of-the-trial-courts
Provincial Court: has a detailed reopening plan: “Staged Resumption of Court Operations - Part 1 (“this Plan”) covers the period May 25th through to and including July 3rd, 2020 and outlines the Court’s operations for that time period.” Access to court remains restricted to persons whose presence is necessary.
Some highlights from the plan:
For Civil Matters:
No in-person appearances; pre-trial conferences, simplified trials, and binding judicial dispute matters by tele- or video-conference. Trials are to be case managed by a judge, and parties will be given advance notice for a case management conference. Applications that can be heard by teleconference may be scheduled.
For Criminal (Adult) Matters:
Docket courts held remotely by tele- or video- conference. In-custody matters will continue to be heard as scheduled. Out-of-custody trials and preliminary inquires currently scheduled will be adjourned. All trials and preliminary inquiries will be treated with case management. All matters for a specialised court are adjourned. Judicial authorization applications will continue to be heard.
For Self-Represented Litigants in Family Law Matters:
Self-represented litigants wanting to commence a matter must contact a Family Court Counsellor. Caseflow and Intake Regulation (Family Court Counsellors) remains mandatory in Calgary, Edmonton, Red Deer and Grand Prairie. Family Mediation is available by phone or video technology at no-cost to eligible participants.
For Emergency Protection Orders:
In-person applications will continue to be heard during regular court hours; those after regular court hours can be made by telecommunication according to the procedure linked in the document.
For Youth Matters:
Docket courts held remotely by tele- or video-conference. In custody Youth Matters continue in person or remotely. Out-of custody trials in Calgary and Edmonton presumptively adjourned; trials in all other areas are considered on a case-by-case basis.
Case Management Offices remain closed until further notice.
Court of Appeal: Filing deadlines extended. https://www.bccourts.ca/Court_of_Appeal/documents/Notice_to_the_Public_June_10_2020.pdf
Supreme Court :The Court has resumed hearing chambers applications of two hours or less. Trials resume on June 8, 2020 in a number of locations. Trial management conferences resume for civil and family matters https://www.bccourts.ca/supreme_court/#current
Provincial Court: Pre-trial conferences now mandated for all criminal files at all Provincial Court locations across the province. The direction applies to trials originally scheduled between March 16 to May 16, and May 19 to July 3, 2020. In-person proceedings resuming in a number of locations. A list of complete directions for re-opening is in the link above. Initial appearance court for criminal matters resuming. Traffic court will restart in some location.
One website: http://www.manitobacourts.mb.ca/covid-19/
Court of Appeal: In-person hearings and chambers motions will re-start with the Fall Season, which begins August 24.
Queen’s Bench: Criminal, civil, family, and child protection trials scheduled between May 26 and June 30 are currently allowed to proceed. “Pre-trails, case management meetings, case conferences, motions, and JADRS . . . will proceed remotely by teleconference or videoconference.”
Provincial Court: Reopening of courts “on a staged and incremental basis” after June 1. Access to courtrooms remains restricted, but accused persons and witnesses may have two support people. Attorneys can appear by teleconference “for bail applications and straightforward dispositions.” Pre-trial coordinator guidelines altered. Weekend Judge’s dockets discontinued. Judicial Justice of the Peace hearings continue. More locations are open for child protection hearings.
Court of Appeal: Motions may now be heard in person, but telephone conferencing remains the default method for hearings
Perfected appeals are being scheduled to be heard in person; remote appeals by videoconference may continue to be heard provided that the Court is advised in advance. https://www.courtsnb-coursnb.ca/content/dam/courts/pdf/COVID19-UpdatetoDirective-June1.pdf
Queen’s Bench: Matters after June 1 “will proceed as scheduled.” Case management masters in person after June 1. Jury trieals will start August 15th. Small claims hearings re-start September 1st. Judges will schedule pre-hearing case management telephone calls. https://www.courtsnb-coursnb.ca/content/dam/courts/pdf/COVID-19-TrialDirectives-CQB-e.pdf
Provincial Court: “First appearances, trials, preliminary inquiries, sentencing hearings, applications to vary court orders and judgements will proceed as scheduled and the Accused must appear in person unless ordered otherwise by the presiding judge in advance of the scheduled appearance. Unless the presiding judge orders otherwise, bail hearings and sentencing hearings for in-custody Accused will continue to proceed via video-conference.” https://www.courtsnb-coursnb.ca/content/dam/courts/pdf/MeasuresApplicable-PC.pdf
“Counsel who are requesting an adjournment of their client’s election or plea or who are appearing for any other matter under the Criminal Code or under Federal Statutory legislation may appear via telephone if approved by the presiding Judge.”
Unrepresented accused must appear in person, unless they have symptoms of COVID-19.
Newfoundland and Labrador
Court of Appeal: Appeals are being heard by way of video and teleconference.
Supreme Court: Emailed documents no longer accepted; normal filing process of documents to resume. https://court.nl.ca/supreme/pdf/2020%2006%2003%20-%20Notice%20to%20the%20Profession%20and%20General%20Public%20-%20Court%20Resuming%20Normal%20Processes%20for%20Filing%20Documents.pdf
Lawyers are to appear by telephone. In Yellowknife: Civil and family proceedings that are scheduled for a date before July 6th are cancelled, as are out of custody criminal matters. Outside Yellowknife: Civil and family proceedings that were scheduled for a date before August 16 are cancelled. Non-urgent civil proceedings are adjourned and mediations are rescheduled. Criminal and youth justice proceedings before July 6 are also cancelled. https://www.nwtcourts.ca/en/nwt-courts-response-to-covid-19/
Court of Appeal: Expanding remote hearings so that the court can “offer fully remote hearings when the September/October term begins.” The Court of Appeal has developed a new practice directive covering hearings based on written submissions, telephone or video conference, in-person, or “hybrid” hearings covering in-person and remote participation. It is here:
Supreme Court: Filing deadline suspensions lifted as of June 5, 2020. Transition to ‘safe services’ model of operation commencing. Expansion of remote hearing capabilities, see this May 10 order on the Virtual Court Initiative: “Virtual court options will be an important part of the Supreme Court’s recovery plan in the coming months. These remote appearances allow the Court to hear more matters without the need for additional staff working at the courthouse and in instances where courtrooms are too small to proceed in-person while respecting social distancing.” The order also refers readers to Best Practices for Remote Hearings, developed by the Ontario E-Hearings Task Force.
Provincial and Youth Justice Court: New Consolidated Directive: Since June 1, some in-custody trials and preliminary inquires have been able to proceed in-person. Starting July 2, the court will be able to hear “a limited number of trials and preliminary inquiries for accused individuals not in custody” pre June 16 announcement Intake Court will continue to be by phone and video. The court reminded parties that resolution without trial remained a priority.
“The NCJ will be able to commence hearing non-complex, out-of-custody, criminal trials as of Monday, June 8, 2020…The above procedures may be modified to accommodate a complex out-of-custody trial in Iqaluit, pending availability of the court.”
Court of Appeal: Planned sitting in Ottawa postponed until 2021. https://www.ontariocourts.ca/coa/en/
Superior Court of Justice: The Small Claims Court will hear urgent motions and urgent garnishment hearings during the COVID-19 emergency period. All urgent hearings will be heard by telephone or videoconference. https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/ See also previous consolidated notice: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/#A_INTRODUCTION
Court of Justice: Will resume hearing additional family law cases and criminal trials and preliminary inquiries starting July 6. The Ministry of Justice is conducting site assessments on all courthouses it plans to reopen. Emailing filing is still allowed. https://www.ontariocourts.ca/ocj/covid-19/
Supreme Court and Court of Appeal: In-person hearings will now be scheduled, and parties no longer have to establish that a matter is urgent, necessary, or essential to proceed.
Provincial Court: Unrepresented accused must appear in person, unless they have symptoms of COVID-19. Counsel requesting adjournments for client elections or pleas, requesting a fix date for a trial or hearing, are to continue to do so by telephone. Counsel must confirm their contact information with the Court and schedule a telephone conference for the day that the Client was scheduled to appear in court. Clients must not attend court on that day. https://www.courts.pe.ca/sites/www.courts.pe.ca/files/2020-06/COVID%2019%20UPDATE%20JUNE%201%202020.pdf
Court of Appeal: Has been conducting virtual hearings since May 25. Best practices for virtual hearings (in French): https://courdappelduquebec.ca/salles-daudience-virtuelles/. The state of emergency and corresponding deadline extension lasted until June 23. (No update as of June 24 on any further extension.) https://courdappelduquebec.ca/actualites/page/2/
Superior Court: Gradual re-openings on a district by district basis. The Quebec division has re-started some activities with the goal of resuming full activity July 3. The Montreal division districts are still hearing only urgent and priority civil and family matters, but the list has expanded. http://tribunaux.qc.ca/c-superieure/avis/covid-19mtl.html
Provincial Court: Gradual reopening as of June 1. Each region has its own plan and schedule. http://www.tribunaux.qc.ca/c-quebec/codiv19/fs_covid19_reprise.html
Municipal courts: Similar to the provincial court, with gradual reopening staring June 1. The memo on the general reopening plan borrows from the provincial court memo.
Human Rights Tribunal: Began its reopening June 1.“Semi-virtual” operations, with the judge in the hearing room and parties appearing by video or phone.
Professions Tribunal: Priority cases heard June 1, July 6, and September 1. http://tribunaux.qc.ca/Tribunal_professions/index_professions.html
Court of Appeal: All hearings to be held by Zoom; all chambers applications to be heard by teleconference.
In Atlantic and Western Canada, the court’s previous suspension period expired on June 15, timelines will be extended until June 29, and hearings will start July 13. General sittings are cancelled until July 12.
The suspension period remains in effect until June 29 in Ontario, Quebec, and the Territories. Hearings between July 11 and July 26 are adjourned sine die. General sittings are cancelled until July 26.
Court fees have been waived since April 6, the waiver will expire on June 29.
The Supreme Court held its first successful Zoom oral argument. Members of the public were able to “attend” via Zoom as well as watch the Court’s livestream.
Chief Justice Wagner’s press conference last week offered some information on his thinking about how COVID may permanently change the courts. In particular, he highlighted the difficulties of jury trials and questioned whether it was realistic to rely on them so heavily.
More Administrative Tribunals
June 14, 2020
Author: Paul Burry
This post summarizes measures taken by tribunals in Ontario and at the federal level. Scroll down to our May updates for immigration.
The Parole Board of Canada
The board is hearing conditional release reviews as scheduled. They are being conducted via videoconference or teleconference when these methods are acceptable. The PBC is still allowing prisoners to submit applications regarding their release. If relevant, the board will consider whether the prisoner’s health is put at risk by COVID-19.
An interesting statement from the board is that they are not allowed to say how many of its decisions were affected by COVID-19. The reason is that the Board is supposed to consider numerous factors when granting parole, such as “the nature and gravity of the offence”. Still, they have released some information which shows that COVID-19 is having an effect on who gets paroled. There has been an increase in parole by exception cases during COVID-19. Last fiscal year, there were 7 parole by exception cases. 4 were allowed. Since March 1st, 2020, the PBC has granted 5 parole by exception cases. There are currently 44 release reviews pending decision. The board has also increased its use of day parole, under which a prisoner is released into the community under certain conditions, such as living at “a community-based residential facility”. In recent years, the PBC has granted an average of 5 of these paroles per week. Since March 1st 2020, its average has been 10 per week. Parolees who have already lived in the community under supervision can also request parole to go live in their own home. In recent years, the PBC has granted one such a request per week. Since March 1st, 2020, the average has been 8 per week.
Canada Agricultural Review Tribunal
The tribunal’s facilities are closed during the pandemic, though they are still offering their services. Hearings and mandatory case management conferences have been suspended until June 26, 2020. Those who wish to file a request for review are encouraged to do so by email.
Social Security Tribunal
Fortunately, many workers for the tribunal already worked at home before COVID-19, so the pandemic has had a reduced effect on these workers. The Tribunal has suspended both in person hearings and video conference hearings that were supposed to be held at Service Canada locations. To help those who fall into one of the two previously stated categories, the Tribunal has proposed three solutions for participants: having a teleconference hearing, having a video conference hearing using Zoom, or having the hearing at a later date. Teleconference hearings scheduled before the pandemic are proceeding as originally planned.
Ontario: Social Justice Tribunals
Most staff and adjudicators are working remotely. Tribunals Ontario is trying to use telephone, video, and written hearings where appropriate. They are delaying and rescheduling hearings which require parties to be physically present. At the moment, they have closed in-person service counters.
The Social Justice Tribunals has implemented a major temporary change to their limitations’ periods. On March 20th, 2020, the Ontario Government suspended the limitations periods and procedural time periods which affects tribunal proceedings. This order is retroactive to March 16th, 2020. Most social justice tribunals apply this rule by telling applicants that they will be able to meet missed deadlines at a later date. A noticeable exception to this approach is displayed by the Landlord and Tenant Board (LTB). With this board, if an application has a deadline which falls on a date during the emergency order, that party gets an automatic extension. This “extension of time will be equal to the number of calendar days between March 16, 2020, and the original filing deadline”. However, the LTB has the right to find that a deadline should not be suspended.
The LTB also suffers a unique problem: what to do with eviction hearings. The board is suspending eviction hearings with two exceptions: matters which are urgent because there is a current health and safety issue at a residential complex, or serious illegal activities are occurring at a residential complex. Additionally, the board will not issue eviction orders unless one of the two previously stated conditions applies. Any eviction order requires the Landlord to bring an urgent motion to the Ontario Superior Court before the Sheriff’s Office will enforce an eviction order.
Ontario: Environment & Land Division
The majority of staff and adjudicators are working remotely. In-person hearings are being re-scheduled. Where possible, hearings are proceeding via alternative measures such as telephone. In-service person counters are closed.
Most tribunals have expressed that their hearings will be conducted in alternative forms without restriction. For instance, the Mining and Lands Tribunal is using teleconference for its mediations and hearings. A noticeable exception is the policy of the Local Planning Appeal Tribunal. This tribunal is scheduling hearings via teleconference and through the written form. However, it is doing so on a “case-by-case basis”.
The majority of tribunals are conducting hearings via alternative measures such as by teleconference, though some tribunals are rescheduling matters. A noticeable exception to this rule is seen in the policy of the Environmental Review Board. This board announced that as of April 9th 2020, matters which are heard by the Niagra Escarpment Hearing Office under the Niagra Escarpment Planning and Development Act no longer have a suspension of limitations periods and procedural time periods. Appealing a develop permit application must be done within 14 days.
Ontario: Safety, Licensing Appeals and Standards Division
Most staff and adjudicators are working remotely during the pandemic. In person hearings are not occurring. They are being rescheduled in alternative forms where appropriate. As with other tribunals, in person services counters are not open. An interesting change has been implemented by the Ontario Parole Board. Because of recent changes to Ontario regulations, applications for temporary absences are able to be approved by the Ministry of the Solicitor General. Temporary absences longer than 72 hours which are referred to the Ministry will continue to be reviewed by the OPB.
May 15, 2020
Author: Alyssa King
Superior Court of Justice
Last week, the Superior Court of Justice (SJC) issued several notices moving appearances to July and suspending jury selection and trials until September. It has now posted a consolidated notice to take effect on May 19. The consolidated notice does not have new dates, but affirms the earlier dates: July for in-person hearings and September for juries. https://www.ontariocourts.ca/scj/
The SJC was at pains to emphasize that it is “not closed,” and “continues to expand its operations virtually—in writing, or by telephone or video conference hearings.” Litigants and their lawyers are to continue to try to resolve their cases.
In principle, it should be possible to use the same phone and video-conferencing technology to conduct a bench trial. Arbitral institutions are developing manuals for virtual hearings and lawyers are learning to conduct examination for discovery, including cross, by video. Still, new technology presents new difficulties and that may be particularly true for self-represented litigants for whom court is already new. Jury trials also could not be conducted virtually in the traditional matter. These difficulties likely explain why the SJC is leaning heavily on settlement, asking “counsel and parties to engage in every effort to resolve matters.”
The decision to suspend jury trials for so long doubtless creates additional pressure for criminal pleas and for civil parties who have a statutory right to a jury to either settle or forgo that right. These pressures were significant enough that some crown courts in England and Wales will resume jury trials next week. Juries will sit for shorter hours and will practice physical distancing, but there are obvious risks to that move in a jurisdiction that is among the most hard-hit in the world.
The notice includes more information on how members of the media and public can observe hearings. The SJC is also recording proceedings (note that the public may not record).
Ontario Court of Justice
The provincial court has also issued notices updating and consolidating its previous ones. https://www.ontariocourts.ca/ocj/covid-19/ The new orders explicitly mentions the media and offer journalists remote access.
Criminal trials and preliminary inquiries have been pushed back until July, but the court is now able to handle non-custody pleas and dismissals. Matters will be “actively case managed,” which means judicial pre-trials in all cases.
Family court trials are also moving to July. However, the court has increased its capacity for audio and video conferencing such that it can resume case conferences for existing matters on May 19.
The new orders include a uniform format for e-mailed documents that should be useful to parties in the absence of an electronic filing system. It would be great to see similar guidance for media that want to send e-mails requesting access.
Administrative Tribunals: Immigration and Refugee Board of Canada
May 15, 2020
Author: Carlos Faustino
In-person hearings are suspended, exception detention reviews and some admissibility hearings involving detained persons.
The IRB will provide a “Resumption Notice” before proceeding with a previously-scheduled in person hearing or scheduling a new one, with some exceptions as listed on the IRB’s COVID-19 Practice Notice.
When proceedings resume, the IRB will be more flexible in application of its rules due to compliance difficulty caused by COVID-19.
Time limits for submitting documents ordered by an IRB Division are extended to 30 days after the “Resumption Notice” is posted. This applies only to documents whose time limits expired on or before March 16, 2020. Division-specific time limits can also be found on the IRB’s COVID-19 Practice Notice.
The Immigration Division and Immigration Appeal Division are now accepting communication by email.
As of May 1, the Immigration Appeal Division has resumed issuing final decisions.
Canada Roundup: Start Here
April 28, 2020
Authors: Alyssa King, Assistant Professor, Paul Burry, JD class of 2021, and Carlos Faustino, JD class of 2021 Queen's University Faculty of Law
With the exception of Nunavut, all provinces and territories have identified cases of coronavirus. The provincial governments have imposed progressively more restricting physical (social) distancing measures. Provincial courts have limited their operations to hearing only some criminal and emergency civil matters, encouraging e-filing, and waiving paper service requirements. Some provinces have also suspended the statute of limitations. Courts at various levels in many provinces continue to run at least partially on paper, but they are beginning to move more matters online to expand their capacity to continue to operate.
Court of Appeal: Filing deadlines have not changed, but most sittings have moved to video conference. https://www.albertacourts.ca/ca/publications/announcements/notice---covid-19
Queen's Bench: Suspension of sittings. https://www.albertacourts.ca/qb/resources/announcements/covid-19-suspension-of-sittings
Alberta Provincial Court: Fewer courthouses are open and traffic court is entirely closed. Albertans do not need to attend court in person unless it they have an in-custody or urgent criminal matter or an urgent family or child protection matter. Hearings in civil cases from now through May 22 are adjourned. The statute of limitations has not been suspended. The courts are processing urgent applications (see link for definition) and have dropboxes for non-urgent matters. https://www.albertacourts.ca/pc/resources/covid
Suspension of limitation periods under the Emergency Program Act as of March 26, 2020: http://www.bclaws.ca/civix/document/id/mo/mo/2020_m086
Court of Appeal: Some deadlines suspended. Criminal parties should continue to file and serve notices and applications within the required time period. The registry is closed and the court prefers filings by fax or mail, but provides a number to call if you don't have those options. With the exception of "matters that must proceed" hearings adjourned. Parties to "matters that must proceed" can consent to teleconference or paper process. https://www.bccourts.ca/Court_of_Appeal/documents/Revised_Notice_to_the_Public_March_30_2020.pdf
Supreme Court: Suspension of court proceedings. "Essential and urgent matters" can be heard through online or paper process. If a judge decides that a hearing is required, the parties may file their materials. The hearing will be by video or phone if possible. https://www.bccourts.ca/supreme_court/documents/Notice%20of%20Suspension%20of%20Civil%20Proceedings%20REVISED%20re%20Insolvency%20April%202%202020.pdf
The court provided a message explaining these decisions: https://www.bccourts.ca/supreme_court/documents/Message_from_Supreme_Court-April_6_2020.pdf
Provincial Court: Only urgent matters are going ahead and the court is using judges to screen applications to determine whether they are, in fact, urgent according to the court's criteria. Matters proceed by video or telephone as a default. https://www.provincialcourt.bc.ca/downloads/Practice%20Directions/NP%2019%20COVID-19%20Suspension%20of%20Regular%20Court%20Operations.pdf
Message from the Chief Justice: https://www.provincialcourt.bc.ca/COVID19
Court of Appeal: Hearings suspended sine die until April 17, 2020. Registry remains open and filing deadlines in place.
Queen's Bench: Non-emergency/urgent matters adjourned April 17. The court asks parties to refrain from making non-urgent filings.
Provincial Court: Most sittings cancelled until May 1, 2020 except for urgent matters. Bail hearings and simple dispositions can be done by teleconference in some courtrooms.
Restrictions on who can enter courts, judge screening of whether appeals are urgent. https://www.courtsnb-coursnb.ca/content/dam/courts/pdf/NB-Courts.pdf
Court of Appeal: Provisions for filing documents and signing affidavit electronically, telephone or video hearings. Media access, limits on recordings also addressed. https://www.courtsnb-coursnb.ca/content/dam/courts/pdf/2020-04-07-Update-Directiverefilingdocuments.pdf
Queen's Bench: Provisions for e-mail filing; Small Claims matters before Aug. 1 adjourned (small claims adjudicators are helping with family division backlog). Motions adjourned, but can be heard by teleconference. Most trials adjourned until May 29th unless they involve in-custody defendant, some family matters, are COVID-19 related, or a judge considers them urgent. https://www.courtsnb-coursnb.ca/content/dam/courts/pdf/COVID19-PD-CQB-e.pdf
Provincial Court: Directive in effect until May 31. Urgent matters heard via video conference if appropriate. Urgent matters are all proceedings involving a defendant in custody and trials and preliminary inquiries that a judge deems to be urgent. https://www.courtsnb-coursnb.ca/content/dam/courts/pdf/PRESSRELEASE.pdf
Newfoundland and Labrador
Court of Appeal: Appeals suspended; urgent matters heard by alternate means. Scheduled applications will be heard by video or phone. Documents filed electronically. https://www.court.nl.ca/appeal/
Supreme Court: Only urgent or emergency matters will be heard, all others adjourned. Court deadlines extended, but statutory filing deadlines are not. Documents may be filed by email. Urgent hearings and appearances will be conducted by video or phone. The court may allow in-person hearings/appearances if necessary. https://court.nl.ca/supreme/covid-19-information.html
Provincial Court: Will not be operating from courthouses. Limited access to court for specific urgent cases. Criminal matters in which the accused is not in custody, civil matters, non-urgent family matters, and Traffic Court and Contraventions Act matters set to proceed before Friday, May 22, 2020 adjourned and will be rescheduled. Phone or video conferencing used if possible. https://court.nl.ca/provincial/
Court of Appeal: March/April/May/June appeals adjourned and filing deadlines suspended.
Supreme Court: Court will accept documents only in urgent and essential matters as determined by a judge. Virtual affidavits allowed.
Press access: allowed as long as social distancing guidelines are followed. Total number of media representatives cannot exceed 8 in the Supreme Court and 4 in Territorial Court.
Supreme Court, Court of Appeal: Submissions by phone or in writing for 4/21 sitting.
Supreme Court, Trial Court: Sittings outside of Yellowknife and trials or voir dires in Yellowknife cancelled until June 5. Scheduled hearings and case management conferences will proceed by videoconference or phone. New hearings not being scheduled until June 5. Special chambers hearings in civil and family matters will proceed by phone or video if no witnesses need to be called.
Territorial Court: All lawyers are to appear by phone. Civil and family proceedings outside Yellowknife before June 1 are cancelled unless court directs otherwise. Non-urgent matters canceled until June 1. Urgent criminal and youth, civil, and family matters will go forward in Yellowknife with parties and lawyers appearing remotely. In custody parties will appear via video-link. Bail and other urgent hearings involving a Justice of the Peace will also proceed remotely.
Court of Appeal: Matters that were to be heard on May 12 moved to July 22.
Court of Justice: All non-urgent matters suspended until June 1 and those affected are to attend court on that date. Filing deadlines from March 16 extended until close of business on June 1. Registry is open electronically and the court will not require personal service of pleadings. Satellite court operations also suspended until June 1. Nunavut is following the Ontario Superior Court's list of urgent criminal matters and procedures for remote hearings. Child welfare matters will also still be heard by phone.
Limitations period suspended retroactive to March 16. https://www.ontario.ca/laws/regulation/200073
Court of Appeal: All hearings conducted electronically or by telephone. All documents must be filed electronically. Simplified bail procedure. https://www.ontariocourts.ca/coa/en/notices/covid-19/ochome.htm
Superior Court: Originally only urgent matters would be heard (urgent included some criminal and family matters as well as urgent COVID-related civil litigation). Different regions are now open for a wider range of matters to be heard online or by phone. https://www.ontariocourts.ca/scj/notice-to-the-profession-the-public-and-the-media-regarding-civil-and-family-proceedings-update/
Online filing for general civil claims: https://www.ontario.ca/page/file-civil-claim-online
Online filing for small claims: https://www.ontario.ca/page/file-small-claims-online
Online filing for divorce: https://www.ontario.ca/page/file-divorce-application-online
Ontario Judicial Courts: Only urgent criminal and family matters heard. Video or phone conferencing. Filing for urgent matters by e-mail. https://www.ontariocourts.ca/ocj/covid-19/
Prince Edward Island
Supreme Court and Court of Appeal: https://www.courts.pe.ca/sites/www.courts.pe.ca/files/2020-03/Covid-19%20March%2016%202020_0.pdf
Access to courts limited to persons who need to be present. In-person court appearances except urgent matters are adjourned until further notice. Urgent matters will be heard using technology such as telephone or video as determined appropriate by the court. Filing of court documents in-person are to be done on an urgent basis only. All others must be done by filing via email.
Provincial Court: Access to courts limited to persons who need to be present. Criminal matters for those in custody will proceed, including bail and sentencing hearings. Criminal matters for those not in custody are adjourned to after May 31, 2020. Tele- and video-conference use will be done where possible in order to avoid personal attendance at courthouses. Lawyers are to appear by phone on behalf of their clients, who must not attend adjournments. Lawyers must also attend by phone for routine matters. Unrepresented clients must call Court for instructions regarding rescheduling.
Court of Appeal: Limitations period suspended for the length of the state of emergency. Decisions on the papers alone or single judge hearings by videoconference are possible at the parties’ request. Parties may write to the court to request an urgent hearing. https://courdappelduquebec.ca/en/covid-19-pandemic-update/
Superior Court of Quebec: http://www.tribunaux.qc.ca/c-superieure/avis/covid-19qc.html (in French).
Montreal— As of April 17, hearing wider list or urgent matters.
Quebec— As of April 17, hearing wider list or urgent matters, uncontested matters, and some matters that do not involve witnesses. Some conferences with the judges can go forward after May 4.
Court of Quebec: Most activities suspended, but the courts will hear urgent matters as defined in the March 31 Service Continuity Plan and as defined by the districts. Urgent youth and criminal matters still heard. http://www.tribunaux.qc.ca/c-quebec/codiv19/fs_covid19.html
Court of Queen's Bench: A directive on March 19 limited in-person hearings to urgent matters. This directive also required urgent matters, such as bail hearings, to go forward by phone, with documents filed electronically. On April 23, the court began to lift restrictions. Physical access to the courts remains restricted to those who are necessary for court proceedings and do not have COVID-19 symptoms. The court will recommence hearing appearance day applications and holding case conferences on May 1. It will lift restrictions on civil and family chambers applications and pre-trial conferences on June 1. Jury trials scheduled through June will be postponed. https://sasklawcourts.ca/index.php/home/court-of-queen-s-bench/covid-19-update
Provincial Court: Physical access to the courts remains restricted to those who are necessary for court proceedings and do not have COVID-19 symptoms. Physical distancing required and no more than 10 people are permitted in a courtroom. Crown and defense counsel have blanket permission to appear by phone except for trials and preliminary hearings. Non-custody docket adjourned until after May 31. https://sasklawcourts.ca/index.php/home/provincial-court/covid-19-update
Supreme Court: No judge or jury criminal trials, Civil Chambers or Appearance Days, or Family Law Chambers for April, May, through June 2020. Only new and urgent matters, as determined by a judge’s discretion, will be scheduled. E-mail filings and service accepted. Criminal matters and previously scheduled civil and family matters will proceed by phone. New and previously scheduled case management conferences by phone. Settlement conferences and matters requiring in-person testimony rescheduled.
Territorial Court: Crown and defense counsel have blanket permission to appear electronically except for trials and preliminary hearings. All pre-trial, case management, and pre-circuit conferences by phone. No travel for circuit courts. In custody matters proceed by phone or video. Non-circuit show causes for in-custody parties by video. Non-urgent applications adjourned; urgent applications by video. In-custody criminal matters proceed through phone and video, as do certain diversion programs and urgent child protection matters. Youth docket may proceed to sentencing or be adjourned until after May 31. Court will open for setting dates and will schedule dates for non-urgent matters after June 11. Media can request access via telephone. http://www.yukoncourts.ca/courts/territorial.html
Court of Appeal: Timelines suspended between March 16 and May 15. The court can make a preliminary decision to decide matters on the papers or hold hearings by video or phone. It will notify the parties, who can request a different arrangement, but the final decision is with the court. https://www.fca-caf.gc.ca/fca-caf_eng.html
Trial Court: Some timelines suspended between March 16 and May 15. Hearings scheduled before May 15, 2020 are adjourned; urgent matters will be heard by telephone conference if possible. General sittings between April 18 and May 15 cancelled. Case management hearings by phone or video and court will try to accommodate requests for remote hearings. Court will continue to decide some matters on the papers. Parties should use e-filing or e-mail. Certain filing fees waived or postponed.
Hearings scheduled for March, April, and May adjourned. Registry working remotely and accepting e-mail filing. https://www.scc-csc.ca/home-accueil/index-eng.aspx
What's happening in the world?
June 6, 2020
by Alyssa King
There’s a lot of good work being done around the world documenting COVID-related procedural changes. I’d like to highlight a few resources that may be especially useful.
Professor Richard Susskind, a longtime advocate for online dispute resolution, has put together some excellent resources: https://remotecourts.org/ is an joint effort between the Society for Computers and the Law, the UK LawTech Delivery Panel, and Her Majesty’s Courts & Tribunals Service. Susskind has been involved in advising courts in a variety of common law jurisdictions including Canada, so Remote Courts is worth watching.
The United States:
Making comparisons to the United States requires an understanding of the division between federal and state courts. Unlike Canada, the US has federal trial courts (district courts) with broad jurisdiction. This jurisdiction is either based on subject matter (federal law is involved) or diversity of citizenship (one party is from outside the forum state and the dispute is worth over $75,000 US). Federal courts may then also have jurisdiction over related state claims (it gets a bit complicated). Federal appellate courts are divided up into circuits, with each court having responsibility for appeals from federal trial courts in the states that make up the circuit. Circuit courts that cover large areas, notably the Ninth Circuit, have some experience using technology to respond to distance. Moreover, the practice of allowing judges to “sit by designation” to aid an especially burdened district or circuit means that some federal judges undertake some remote work in the ordinary course of their duties. The federal judiciary is also relatively well-funded. All these factors probably helped federal judges respond to COVID.
Still, federal courts in some areas are probably feeling significant strain. They are required by statute to conduct criminal trials within a certain timeframe, and defendants have a constitutional right to trial by jury. Grand juries are also necessary to return a felony indictment (and there are a lot of federal felonies).
The state courts are courts of general jurisdiction. They can hear matters of both state and federal law. State courts have a lot more cases, orders of magnitude more than the federal government. Although federal courts are increasingly hearing from self-represented litigants, self-reps can make up the overwhelming majority of parties on some state dockets. Many state courts also went into the pandemic on considerably leaner budgets than their federal counterparts. Many state criminal trials also must be conducted by jury; however, grand juries are not used as frequently.
The Administrative Office of US Courts has collected COVID-related orders here: https://www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updates-during-covid19-pandemic
The Eastern and Southern Districts of New York, which between them cover New York City, will be of particular interest. The Eastern District, which covers Brooklyn and Queens, is in the epicenter of the epicenter of the pandemic in the United States. Chief Judge Mauskopf’s order of April 21, 2020 clearly speaks to the strain her court is under, noting impacts on juries and pre-trial detainees in particular: https://img.nyed.uscourts.gov/files/general-ordes/Admin%20Order%202020-15.pdf. Mauskopf has also ordered wardens holding federal pre-trial detainees to report to her about conditions in their jails: https://img.nyed.uscourts.gov/files/general-ordes/Admin%20Order%202020-15.pdf.
The National Center for State Courts (NCSC) has an excellent page collecting COVID information for all 50 US states, 5 territories, and the District of Columbia. https://www.ncsc.org/newsroom/public-health-emergency. As the NCSC makes clear, one of the biggest issues facing state courts are jury trial suspensions. Many criminal defendants have a right to a jury. Civil juries are also fairly common.
In May 2019 NCSC hosted a National Pandemic Summit discussing how state courts should respond if a pandemic were to occur. Many of the talks seem to be focused on quarantine and related state laws. However, a discussion of business continuity planning would apply to procedure. https://www.ncsc.org/topics/courthouse-facilities/emergency-preparedness-disaster-recovery/pandemic
The New York State court system webpage provides COVID updates with pictures: https://www.nycourts.gov/. Recent changes include an electronic document system. Upstate courts are reopening, but New York city courts remain closed.
United Kingdom—England and Wales:
I will come back to it in a later post, but I want to highlight a report on the impact of COVID-19 on civil court users that just came out, authored by Dr. Natalie Byron and her team at the Civil Justice Council: https://www.judiciary.uk/announcements/civil-justice-council-report-on-the-impact-of-covid-19-on-civil-court-users-published/ . More on this report and lessons for Canada soon.