Legal Urgency in the time of COVID-19

If you have a civil or commercial legal matter during the COVID-19 state of emergency, this article is the place to start.

April 27, 2020 (updated May 29, 2020)

On March 15, 2020, in response to the public health emergency of COVID-19, Chief Justice Morawetz issued an unprecedented "Notice to the Profession, the Public and the Media", suspending the regular operations of the Ontario Superior Court of Justice until further notice ("March Notice"). Various updates were made in April. On May 5, 2020, the Chief Justice announced that in-person hearings, which were suspended on March 17, 2020, would not begin until July 6, 2020 at the earliest[1]. On May 13, 2020, a "Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media" ("Consolidated Notice") was issued, which is effective from May 19, 2020. Each judicial region updated its regional notices on May 13, 2020, also effective from May 19, 2020.

The suspension does not mean that the courts are closed. In an April 6, 2020 virtual fireside chat hosted by The Advocates' Society, the Chief Justice stated unequivocally that the Ontario Superior Court of Justice "has never closed … we suspended in-court operations, but [the Court] continues to operate, and it is never going to stop operating". 

The March Notice states:

The Court will continue to hear urgent matters during this emergency period. The Court plays a fundamental role in our constitutional democracy. Access to justice for the most urgent matters must always remain available.

With respect to civil and commercial matters,^[2] the March Notice defined "urgent" to include:

Urgent and time sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result without a judicial hearing.

Other matters that will be heard during the suspension include requests for judicial review related to COVID-19, urgent and certain other Commercial and Estate List matters in Toronto, urgent bankruptcy matters in Toronto, certain class action matters in Toronto, certain motions regarding construction liens, certain opposed short motions and applications in civil matters, and, expansively, "any other matter the Court deems necessary and appropriate to hear on an urgent basis."[3]

In a recent fireside chat on May 28, 2020, the Chief Justice has indicated that there will be a significant expansion of civil virtual hearings in the next few weeks. He indicated that there will be a gradual reopening of the Court and that the target return to court date is July 6, 2020, but that there will be no full-scale return until there is a COVID-19 vaccine in place. Even if the target date is met, in-person hearings will be limited and reserved for more serious and substantive aspects of proceedings, while virtual hearings will be used for more straightforward and procedural matters.

The Divisional Court is now able to hear urgent and non-urgent matters, but, given technological and staffing constraints, it is giving priority to urgent matters.[4]

The open-ended nature of the definition of "urgent" coupled with an admonition to parties to be judicious in these volatile times, does little to answer every party's first question:

            Does my legal matter qualify as urgent?

Even as the courts begin to re-open, hearing limited additional procedural matters, motions in writing, pre-trials, and the anticipated Return to Operations (RO) Scheduling Court is set up, the backlog of cases will mean that urgency may be a factor that parties need to continue to rely on as the courts work to return to normal operations in the wake of COVID-19.

As with all litigation, whether the Court will find a matter urgent for the purposes of scheduling a hearing during the suspension, or prioritize scheduling of appearances will be fact-specific. Recent decisions of the Court since March 15 shed some light on the matters the Court has found to qualify as urgent.

The Test for Urgency Pursuant to the Notice

The Court recently considered urgency in a family law case and found the following four factors are necessary in order to meet the March Notice's requirement for urgency. The concern must be:

1. Immediate and cannot await resolution at a later date;
2. Serious in the sense that it significantly affects the health or safety or economic well-being of parties;
3. Definite and material rather than speculative. It must relate to something tangible rather than theoretical; and
4. Clearly particularized with evidence that describes the manner in which the concern reaches the level of urgency.

Other examples decided in the commercial or civil context include the following:

• A hearing of a landlord's application for a residential eviction order against a tenant who had been criminally charged with sexual assault in the rental building after the Landlord and Tenant Board had previously issued an eviction order (before the state of emergency) that was set to expire during the state of emergency
• An application of a condominium corporation to prevent a tenant from renovating her condominium unit (and bringing in external renovators) during the state of emergency to protect the health of residents
• An application to extend a permit for construction of a driveway where the applicant had spent years applying for the permit, and the permit was set to expire during the state of emergency
• A sealing motion to address information disclosed in a court proceeding that risked violating a minor's privacy rights
• An application by a leadership candidate against the Conservative Party of Canada, challenging his disqualification previously scheduled for June 27, 2020

True to the terms of the Notice, the Court is prepared to grant judicial hearings of matters that are time sensitive and engage the significant financial interests of a party, and cases that are related to public health in the context of COVID-19.

Numerous steps in the litigation process, including examinations for discovery, case conferences, and proceedings are being conducted by telephone or video conference. Justice Myers recently ordered that a videoconference examination should proceed over the plaintiffs' objections that it was difficult to assess a witness's demeanour remotely and the lack of physical presence of counsel. The Plaintiffs requested a delay in the proceedings until the requirement for social distancing had ended. Justice Myers refused the request, stating:

In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.

Matters of public safety, democratic and privacy rights also demonstrate the types of significant rights that, together with time sensitivity, the Court may qualify as urgent.

Toronto – Commercial List, Estate List, Construction Lien, and Other Matters

On March 16, 2020, the notice titled "Changes to Commercial List Operations in Light of COVID-19 provided examples of which commercial matters are likely to be considered urgent or time sensitive and be heard. These included certain bankruptcy, insolvency, and receivership matters.

The Notice to Profession – Toronto, updated May 13, 2020 (the "Toronto Notice"), indicated that in addition to urgent matters, Commercial and Estates List judges are hearing 'select' motions and applications, and are holding case management, pre-trial, and judicial settlement conferences. While the Court did not further particularize the types of matters that would be heard, the Toronto Notice stated that Commercial and Estate List matters cannot be more than four hours, and that all contested matters will be heard by teleconference using ZOOM or other software.

For non-Commercial List civil matters, some judicial regions, including Toronto, are scheduling and hearing non-urgent opposed short motions and applications in writing unless otherwise directed. All opposed short motions and applications to a judge or master will be subject to review in writing before being scheduled.

Lastly, pursuant to the Toronto Notice, various motions and case conferences in class action matters and in construction lien matters may be heard in Toronto, in addition to urgent bankruptcy matters heard by registrars in bankruptcy.

Small Claims Court

The Small Claims Court is currently hearing urgent motions and urgent garnishment hearings during the COVID-19 emergency period (as of May 4, 2020).[5] Other sittings and hearings before the Small Claims Court have been suspended since March 16, 2020. The Small Claims Court is not accepting in-person filing as of May 4, 2020; where in-person filing is required, parties can expect the Court to grant extensions of time once counter service resumes.  

Other Judicial Regions

Each judicial region in Ontario has additional criteria for what constitutes an "urgent matter" during the suspension, and specific procedures to follow. These should be consulted where matters are pending or are contemplated in those judicial regions. Each judicial region has updated its regional notices on May 13, 2020, which are effective from May 19, 2020.

Takeaway

What is clear from the early case law on urgency during COVID-19 is that while the categories of rights and interests that may qualify have been given some shape by the guidance in the Notice, matters that engage significant and time-sensitive legal rights of parties will be considered urgent. This analysis, however, will be conducted in the context of the underlying importance of preserving judicial capacity while operations due to COVID-19 are suspended or disrupted.

The Court's transition back to normal operations in the wake of COVID-19 will similarly demand a balancing of the urgency of matters with the Court's capacity. Parties and counsel need to be sensitive to these issues.

If your legal rights are at risk in a time sensitive context, you should consult with a lawyer to determine whether bringing an urgent motion is appropriate in the circumstances.

For further information, please do not hesitate to contact a member of Robins Appleby's litigation and dispute resolution team.