COVID-19 – An Era of Careful Discretion

Sarah McCarthy
Posted July 28, 2020 Category: Individuals/Families
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A six-month comment on COVID-19 and civil litigation

It has been approximately six months since COVID-19 arrived in Canada on January 25, 2020. Since that date, various legislative changes, Orders, Regulations and reported decisions have drastically, albeit temporarily, altered the civil litigation system. On March 17, 2020, the Ontario government declared a state of Emergency pursuant to the Emergency Management and Civil Protection Act. Correspondingly, various Orders and Regulations were issued under the Act. Importantly, on March 15, 2020, a Notice to the Profession, Litigants, Accused Persons and the Public advised that court operations were suspended, and all proceedings adjourned (superseded by further Notices). On March 20, 2020, Ontario Regulation 73/20 was created, suspending limitation periods and times to complete steps within proceedings, and on March 19, 2020, evictions were suspended pursuant to an Order of the Chief Justice Geoffrey Morawetz.

As a result, Courts have been tasked with applying new rules to situations both anticipated and unforeseen. Throughout the various changes, there has been significant discussion amongst the civil bar surrounding the potential affects the various new provisions might have on the judicial system and, most importantly, our clients.

Despite many concerns and uncertainties, a consistent theme of judicial discretion has emerged, allowing Courts to effectively balance the protection of public health with protecting the public’s serious legal interests. Reported decisions illustrating the exercise of this judicial discretion should be considered by lawyers before relying on a dogmatic interpretation of these legislative changes, Orders, Regulations and Notices as a means of taking advantage of the global pandemic to achieve a potentially unjust result.

By way of example, in an earlier blog post we discussed the Suspension of Limitation Periods pursuant to O. Reg. 73/20, which is currently scheduled to last until at least September 11, 2020. With respect to times to complete steps within a proceeding, the Order specifically states that the timelines are suspended, “subject to the discretion of the Court, tribunal or other decision-maker responsible for the proceeding”. This provision has since been applied in certain decisions to uphold timelines, such as the time for delivery of a defence/response, despite O. Reg. 73/20 in cases of urgency or where the regulating body has agreed as a whole to uphold such timeline, and where the judge or adjudicator has determined it appropriate.

Similarly, the Order of Chief Justice Geoffrey Morawetz dated March 19, 2020 suspending eviction recognizes the Court’s discretion to nonetheless enforce evictions despite the Order. Provision 2 of the Order specifies that eviction Orders issued by the Landlord and Tenant Board or pursuant to writs of possession are suspended until the end of the month in which the state of emergency is declared terminated “unless the Court orders otherwise upon leave being granted to a party by the Court pursuant to the Court’s procedures for urgent motions.” Accordingly, there have been several recent reported decisions concerning cases of urgency whereby the Court has exercised its discretion to direct the Sheriff to enforce evictions despite the March 19, 2020 Order.

The reservation of the Court’s discretion was also demonstrated when court services were initially restricted due to COVID-19. All court proceedings were stayed pending further direction, unless deemed to be urgent by a Judge. In another context of discretion, Ontario has yet to adopt immunity to civil liability arising from COVID-19 despite other areas, such as British Columbia and certain U.S. states, adopting same. The rejection, or delay, to adopt such legislation allows for further determination of COVID-19 liability, at least for the time being, to be determined by the Court on the basis of the particular circumstances.

Now, as we approach the end of July, and the end of the current state of Emergency, we look forward to what a new season of COVID-19 era changes might entail. Although the developing situation makes predicting the future impossible, based on the past several months, we can likely expect a similar trend. Instead of an inflexible, one-size-fits-all approach, the door will likely be left open for dynamic application of COVID-19-related law. In short, Courts will be afforded the tools they require to ensure that justice is done.

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Sarah McCarthy
Posted July 28, 2020 Category: Individuals/Families

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